                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 01-50102
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JOSE MARIO FRAUSTO-PEREZ,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. DR-00-CR-308-1-FB
                       --------------------
                          August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

     Jose Mario Frausto-Perez appeals the 46-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of 8

U.S.C. § 1326.    Frausto-Perez argues that his sentence should not

have exceeded the two-year maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).    Frausto-Perez acknowledges

that his argument is foreclosed by the Supreme Court’s decision

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



     *
        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that this opinion should not be published and is not precedent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. 01-50102
                               -2-

seeks to preserve the issue for Supreme Court review in light of

the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

     Apprendi did not overrule Almendarez-Torres.   See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

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

Perez’s argument is foreclosed.   The judgment of the district

court is AFFIRMED.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.   The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.
