               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 00-51055
                           Summary Calendar



UNITED STATES OF AMERICA

                Plaintiff - Appellee

     v.

MACARIO OJEDA-NAVARRO

                Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. EP-00-CR-962-1-H
                       --------------------
                          October 8, 2001

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:*

     Macario Ojeda-Navarro appeals his sentence of 46 months’

imprisonment after pleading guilty to illegal reentry after

deportation in violation of 8 U.S.C. § 1326.   The district court

determined that Ojeda-Navarro’s offense level should be increased

by 16 points pursuant to U.S.S.G. § 2L1.2(b)(1)(A) due to his

prior felony DWI conviction.    On August 30, 2001, the Government

filed an unopposed motion to remand for resentencing pursuant to

this court’s decision in United States v. Chapa-Garza, 243 F.3d



     *
        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that this opinion should not be published and is not precedent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. 00-51055
                                 -2-

921, 927 (5th Cir. 2001), rehearing and rehearing en banc denied,

___ F.3d ___, 2001 WL 946416 (5th Cir. Aug. 20, 2001).

       The Government’s motion is GRANTED, the judgment of

conviction is VACATED, and this case is REMANDED for resentencing

in light of Chapa-Garza.

       Ojeda-Navarro contends that the aggravated-felony conviction

that resulted in his increased sentence under § 1326(b)(2) was an

element of the offense that should have been charged in the

indictment.    He concedes that this argument is foreclosed by

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

nevertheless 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; see also United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000)(noting that the Supreme Court

in Apprendi expressly declined to overrule Almendarez-Torres),

cert. denied, 121 S. Ct. 1214 (2001).      This court must therefore

follow the precedent set in Almendarez-Torres “unless and until

the Supreme Court itself determines to overrule it.”       Dabeit, 231

F.3d at 984 (internal quotation and citation omitted).       Apprendi

does not prevent him from being sentenced to a term of

imprisonment of more than two years.       Chapa-Garza, 243 F.3d at

928.

     MOTION GRANTED; JUDGMENT VACATED AND REMANDED FOR
RESENTENCING.
