               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-41080
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

DOMINGO MARTINEZ-CALDERON,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-00-CR-186-1
                      --------------------
                          June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     Domingo Martinez-Calderon (“Martinez”) appeals the 57-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.

     Martinez acknowledges that his argument is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States,

     *
        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that this opinion should not be published and is not precedent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. 00-41080
                               -2-

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, 120 S. Ct. 2348 (2000).

     Apprendi did not overrule Almendarez-Torres.   See Apprendi,

120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984

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

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

court is AFFIRMED.
