               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-51244
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

BILLY BROOKS, JR.,

                                         Defendant-Appellant.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. W-00-CR-24-1
                        - - - - - - - - - -
                         February 20, 2003

Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Billy Brooks, Jr., appeals the sentence imposed following

his guilty plea conviction of possessing an unspecified amount of

cocaine base with the intent to distribute it in violation of 21

U.S.C. § 841(a)(1).   Brooks contends that his sentence violates

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because the

district court increased his base offense level and recommended

sentencing range under the United States Sentencing Guidelines


     *
        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that this opinion should not be published and is not precedent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. 00-51244
                                 -2-

based on a finding that his offense involved 58 grams of cocaine

base.    Brooks contends that the facts relating to drug quantity

should have been alleged in his indictment because they increased

the maximum upper limit of his applicable guideline range.    He

argues that Apprendi applies in his case because his applicable

sentencing guideline range limited the court’s sentencing

authority and, in effect, provided the statutory maximum term of

imprisonment available for his offense.    Brooks acknowledges that

his argument is foreclosed by this court’s precedent.    He raises

the issue to preserve it for possible Supreme Court review.

     This court has repeatedly held that Apprendi does not

invalidate a sentencing court's factual findings (such as drug

quantity) for the purposes of determining the applicable

Sentencing Guidelines in cases where those findings cause a

defendant’s guideline range to shift only within the statutory

range.   See United States v. Doggett, 230 F.3d 160, 166 (5th Cir.

2000); see also United States v. Randle, 304 F.3d 373, 378 (5th

Cir. 2002); United States v. Keith, 230 F.3d 784, 787 (5th Cir.

2000).   An Apprendi violation occurs only if a fact not alleged

in the indictment, such as drug quantity, is used to increase a

sentence beyond the statutory maximum otherwise applicable for

the offense.    See Keith, 230 F.3d at 787.   Brooks’s argument is

indeed foreclosed.

     Under this court’s precedent, no Apprendi violation occurred

in Brooks’s case.    Notwithstanding the 58 grams of cocaine base
                           No. 00-51244
                                -3-

that were considered by the district court in arriving at

Brooks’s 188-month sentence, the sentence does not exceed the 20-

year statutory maximum term of imprisonment that may be imposed

for possessing an unspecified amount of cocaine base.   See 21

U.S.C. § 841(b)(1)(C).   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 an appellee's brief not be required.   The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.
