                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 00-11399
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

ALEJANDRO GOMEZ-SIMON,
also known as Simeon Ezequiel Manterola,

                                           Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:00-CR-248-ALL-L
                      --------------------
                         August 23, 2001

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

PER CURIAM:*

     Alejandro Gomez-Simon appeals the 57-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.    Gomez-Simon argues that his sentence should not

have exceeded the two-year maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).    Gomez-Simon 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that this opinion should not be published and is not precedent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. 00-11399
                                -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).      Gomez-

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

court is AFFIRMED.

     In lieu of filing an appellee’s brief, the Government has

filed a motion asking this court to dismiss this appeal or, in

the alternative, to summarily affirm the district court’s

judgment.   The Government’s motion to dismiss is DENIED.    The

motion for summary affirmance is GRANTED.   The Government need

not file an appellee’s brief.

     AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
     AFFIRMANCE GRANTED.
