               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-51281
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

CARLOS AYALA-GUZMAN, also known as
Carlos Sanchez, also known as David Bravo,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. EP-01-CF-1057-DB
                       --------------------
                          August 2, 2002

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Court-appointed counsel representing Carlos Ayala-Guzman has

moved for leave to withdraw and has filed a brief as required by

Anders v. California, 386 U.S. 738 (1967).   Ayala-Guzman has not

filed a response.

     Our independent review of counsel’s brief and the record

discloses one possible nonfrivolous issue.   Ayala-Guzman’s

offense level and sentence were increased for his having been

     *
        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that this opinion should not be published and is not precedent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. 01-51281
                                  -2-

deported after a prior aggravated-felony conviction which was not

alleged in his indictment.    An argument that the prior conviction

should have been alleged in the indictment is foreclosed by

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

However, the continuing validity of Almendarez-Torres has been

cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489

(2000)(finding it “arguable that Almendarez-Torres was

incorrectly decided”).   Counsel could have raised the issue on

appeal in order to preserve it for Supreme Court review in light

of Apprendi.

     Because our independent review of the record has revealed

this possible nonfrivolous issue for appeal, we deny counsel’s

motion to withdraw.   By our denying the motion to withdraw,

Ayala-Guzman preserves the Almendarez-Torres issue for further

review.   We pretermit further briefing, however, and AFFIRM the

judgment of the district court because Apprendi did not overrule

Almendarez-Torres.    See Apprendi, 530 U.S. at 490; see also

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)(noting

that the Supreme Court in Apprendi expressly declined to overrule

Almendarez-Torres), cert. denied, 531 U.S. 1202 (2001).    This

court must follow the precedent set in Almendarez-Torres “unless

and until the Supreme Court itself determines to overrule it.”

Dabeit, 231 F.3d at 984 (internal quotation and citation

omitted).
                          No. 01-51281
                               -3-

     Accordingly, counsel’s motion for leave to withdraw is

DENIED, and the decision of the district court is AFFIRMED.
