               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-10158
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

PEDRO JIMENEZ-VILLAREAL, also known as Martin
Jimenez-Hernandez,

                                         Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:00-CR-265-ALL-L
                       - - - - - - - - - -
                         October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Pedro Jimenez-Villareal, also known as Martin Jimenez-

Hernandez, appeals the 41-month sentence imposed following his

plea of guilty to a charge of being found in the United States

after 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.




     *
        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that this opinion should not be published and is not precedent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. 01-10158
                                 -2-

     Jimenez-Villareal 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

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; see also United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).

Jimenez-Villareal’s argument is foreclosed.

     The Government has filed a motion seeking dismissal of this

appeal as frivolous, or a summary affirmance of the district

court’s judgment without further briefing.     Alternatively, the

Government seeks an extension of time in which to file an appeal

brief.    This appeal is not frivolous.    However, because the sole

issue raised on appeal is foreclosed by precedent, the

Government’s motion for summary affirmance of the district

court’s judgment is GRANTED and the district court’s judgment is

AFFIRMED.    All other relief sought in the Government’s motion is

DENIED.

GOVERNMENT’S MOTION GRANTED IN PART, DENIED IN PART; AFFIRMED.
