               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-40884
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

PEDRO MARTINEZ-SILVA,
also known as Julio Martinez,

                                         Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. B-00-CR-188-1
                       --------------------
                          April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Pedro Martinez-Silva appeals the 70-month sentence imposed

following his plea of guilty to a charge of being found in the

United States following 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.

     Martinez-Silva acknowledges that his argument is foreclosed

by the Supreme Court’s decision in Almendarez-Torres v. United


     *
        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that this opinion should not be published and is not precedent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. 00-40884
                               -2-

States, 523 U.S. 224 (1998), but he seeks to preserve the issue

for Supreme Court review in light of the decision in Apprendi v.

New Jersey, 120 S. Ct. 2348 (2000).

     Apprendi did not overrule Almendarez-Torres.   See Apprendi,

120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984

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

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

court is AFFIRMED.
