               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-41036
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

DAVID ALANIS-PERALES,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-00-CR-136-1
                      --------------------
                          June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     David Alanis-Perales appeals his guilty-plea conviction and

sentence for being found in the United States following

deportation, in violation of 8 U.S.C. § 1326.

     Alanis-Perales 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.   Alanis-Perales acknowledges that his argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

     *
        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that this opinion should not be published and is not precedent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. 00-41036
                                -2-

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, 121 S. Ct. 1214 (2001).   Alanis-Perales’s argument is

foreclosed.

     Alanis-Perales also argues that his indictment was defective

because it did not allege that his prior conviction occurred

before his last deportation, as opposed to prior to his being

found in the United States.   Based on the Supreme Court’s

decision in Apprendi, Alanis-Perales argues that the timing of

his prior conviction is an element of the offense under 8 U.S.C.

§ 1326(b)(2), which must be alleged in the indictment.     Alanis-

Perales’s argument is foreclosed.   In Almendarez-Torres, the

Supreme Court held that § 1326(b)(2), which includes the timing

requirement, is a sentencing factor and not a separate criminal

offense.   Almendarez-Torres, 523 U.S. at 235.

     The judgment of the district court is AFFIRMED.
