               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                              No. 00-51012
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

BENITO RODRIGUEZ-ORTIZ,

                                           Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. A-00-CR-72-ALL-JN
                        --------------------
                           April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Enrique Rodriguez-Ortiz appeals the 70-month sentence

imposed following his plea of guilty to a charge of being found

in the United States after deportation, a violation of 8 U.S.C.

§ 1326.   For the first time on appeal, Rodriguez argues that the

aggravated-felony conviction that resulted in his increased

sentence under 8 U.S.C. § 1326(b)(2) was an element of the

offense that should have been charged in the information to which

he pleaded guilty.



     *
        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that this opinion should not be published and is not precedent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. 00-51012
                                -2-

     Rodriguez acknowledges that his argument is foreclosed by

the Supreme Court’s decision in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the issue

for Supreme Court review in light of the decision in Apprendi v.

New Jersey, 120 S. Ct. 2348 (2000).

     Apprendi did not overrule Almendarez-Torres.   See Apprendi,

120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).     Rodriguez

has failed to demonstrate error, plain or otherwise.      Dabeit, 231

F.3d at 983-84.   The judgment of the district court is

     AFFIRMED.
