               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-10895
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

NICOLAS ZAPATA-DIAZ,
also known as Mario Rendon-Leobos,

                                         Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:01-CR-49-ALL-X
                       --------------------
                         February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Nicolas Zapata-Diaz appeals his guilty plea conviction of

being found in the United States after deportation in violation

of 8 U.S.C. § 1326.   He argues that his guilty plea was rendered

involuntary by the district court’s failure to advise him during

the plea colloquy that a prior aggravated felony conviction is an

element of the offense under 8 U.S.C. § 1326(b)(2) which the

Government would have to prove to a jury beyond a reasonable

doubt.   Zapata-Diaz acknowledges that his argument is foreclosed


     *
        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that this opinion should not be published and is not precedent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. 01-10895
                                -2-

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, 531 U.S. 1202 (2001).   Zapata-

Diaz’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 asking this court to dismiss this appeal or, in

the alternative, to summarily affirm the district court’s

judgment.   The Government’s motion to dismiss is DENIED.   The

motion for a summary affirmance is GRANTED.   The Government need

not file an appellee’s brief.

     Zapata-Diaz has filed a motion for leave to file an amended

initial brief.   The motion is GRANTED.

     AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
     AFFIRMANCE GRANTED; MOTION TO FILE AN AMENDED BRIEF GRANTED.
