                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 20, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 01-51141
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JAVIER CABRALES-LOPEZ,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. P-00-CR-235-ALL
                        --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Javier Cabrales-Lopez appeals the 77-month sentence imposed

following his guilty-plea conviction of one count of being found

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

§ 1326.   He contends that the 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 indictment.

Cabrales-Lopez’s argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998); see also United States v.

     *
        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that this opinion should not be published and is not precedent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. 01-51141
                               -2-

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).    Accordingly, 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.
