               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-50609
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

EDUARDO DE LA CRUZ-HERRERA,
                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-01-CR-54-ALL-SS
                       --------------------
                         February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Eduardo De La Cruz-Herrera appeals the 70-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.   De La Cruz-Herrera complains that his sentence

was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based

on his prior removal following an aggravated felony conviction.

De La Cruz-Herrera argues that the sentencing provision violates

the Due Process Clause because it permitted the sentencing judge

to find, under a preponderance of the evidence standard, a fact


     *
        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that this opinion should not be published and is not precedent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. 01-50609
                                -2-

which increased the statutory maximum sentence to which he

otherwise would have been exposed.    De La Cruz-Herrera thus

contends that his sentence is invalid and argues that it should

not exceed the two-year maximum term of imprisonment prescribed

in 8 U.S.C. § 1326(a).   De La Cruz-Herrera acknowledges that his

argument is foreclosed by the Supreme Court’s decision in

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

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, 531 U.S. 1202 (2001).    De La Cruz-

Herrera’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.
