               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-50357
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JUAN JOSE GUTIERREZ-HERNANDEZ,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. DR-00-CR-664-1
                       --------------------
                         October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Juan Jose Gutierrez-Hernandez appeals the 62-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of

8 U.S.C. § 1326.   Gutierrez-Hernandez complains that his sentence

was enhanced pursuant to 8 U.S.C. § 1326(b)(2), which allowed the

court to impose up to a twenty-year term of imprisonment because

he was removed after being convicted of an aggravated felony.

Gutierrez-Hernandez argues that the sentencing provision violates

the Due Process Clause because it permitted the sentencing judge

     *
        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that this opinion should not be published and is not precedent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. 01-50357
                                -2-

to find, under a preponderance of the evidence standard, a fact

which increased the statutory maximum sentence to which he

otherwise would have been exposed.    Gutierrez-Hernandez thus

contends that his sentence is invalid and argues that it should

not exceed the two-year maximum term of imprisonment prescribed

in 8 U.S.C. § 1326(a).   Gutierrez-Hernandez 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).

Gutierrez-Hernandez’s argument is foreclosed.    The judgment of

the district court is AFFIRMED.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.    The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.
