               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-40028
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JOSE LUIS ROMERO-RODRIGUEZ, also known as Jesus Vasquez,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. L-99-CR-676-1
                      --------------------
                         April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     The Federal Public Defender appointed to represent Jose Luis

Romero-Rodriguez has moved for leave to withdraw and has filed a

brief as required by Anders v. California, 386 U.S. 738 (1967).

Romero-Rodriguez received a copy of counsel’s motion and brief,

but did not file a response.

     Our independent review of the brief and the record discloses

one possible nonfrivolous issue for appeal.   Romero-Rodriguez’s

offense level and sentence were increased for his having been

deported after a prior aggravated-felony conviction which was not

     *
        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that this opinion should not be published and is not precedent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. 00-40028
                                  -2-

alleged in his indictment.    An argument that the prior conviction

should have been alleged in the indictment is foreclosed by

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

However, the continuing validity of Almendarez-Torres has been

cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000).    See id. at 2362 (finding it “arguable that

Almendarez-Torres was incorrectly decided”).    Counsel could have

raised the issue on appeal in order to preserve it for Supreme

Court review in light of Apprendi.

     Because our independent review of the record has revealed

this possible nonfrivolous issue for appeal, we deny counsel’s

motion to withdraw.    By our denying the motion to withdraw,

Romero-Rodriguez preserves the Almendarez-Torres issue for

further review.    We pretermit further briefing, however, and

AFFIRM the judgment of the district court because Apprendi did

not overrule Almendarez-Torres.    See id., 120 S. Ct. at 2362; see

also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000)(noting that the Supreme Court in Apprendi expressly

declined to overrule Almendarez-Torres), cert. denied, 121 S. Ct.

1214 (2001).   This court must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.”    Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted).

     Accordingly, counsel’s motion for leave to withdraw is

DENIED, and the decision of the district court is AFFIRMED.
