                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 01-20376
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

ESPIRIDION BARRAGAN-CASTILLO,

                                          Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. H-00-CR-718-ALL
                       --------------------
                         December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     The Federal Public Defender appointed to represent

Espiridion Barragan-Castillo has filed a motion for leave to

withdraw and has filed a brief as required by Anders v.

California, 386 U.S. 738 (1967).   Barragan-Castillo filed a

response, arguing that his prior aggravated felony conviction was

an element of the offense which should have been alleged in the

indictment.    He acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998),

but he seeks to preserve the issue for Supreme Court review in


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                          No. 01-20376
                               -2-

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).      This

argument lacks merits as the indictment did allege that Barragan-

Castillo had a prior aggravated felony conviction.   Our

independent review of the brief and the record discloses no

nonfrivolous issue in this direct appeal.   Accordingly, the

motion for leave to withdraw is GRANTED, counsel is excused from

further responsibilities herein, and the APPEAL IS DISMISSED.

See 5TH CIR. R. 42.2.
