               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-10062
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

EPIFANIO ORTEGA-BARRAZA,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 6:00-CR-37-1-C
                      --------------------
                        October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Epifanio Ortega-Barraza appeals the 46-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after deportation in violation

of 8 U.S.C. § 1326.   Ortega-Barraza contends that 8 U.S.C.

§ 1326(a) and 8 U.S.C. § 1326(b)(2) define separate offenses.    He

argues that the aggravated felony conviction that resulted in his

increased sentence was an element of the offense under 8 U.S.C.

§ 1326(b)(2) that should have been alleged in his indictment.

Ortega-Barraza notes that he pleaded guilty to an indictment

     *
        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that this opinion should not be published and is not precedent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. 01-10062
                                  -2-

which recited only facts and elements supporting a charge of

simple reentry under 8 U.S.C. § 1326(a), and argues that his

sentence exceeds the two-year maximum term of imprisonment which

may be imposed for that offense.    Ortega-Barraza acknowledges

that his argument is foreclosed by the Supreme Court’s decision

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

seeks to preserve 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).     Ortega-

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

court is AFFIRMED.

     In lieu of filing an appellee’s brief, the Government has

filed a motion to dismiss this appeal.     The Government’s motion

to dismiss is DENIED.   However, in light of our decision to

affirm the district court’s judgment, the Government need not

file an appellee’s brief.

     AFFIRMED; MOTION TO DISMISS DENIED.
