               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-41076
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

GABRIEL ESCALERA-DIAZ, also
known as Rene Delgado-Diaz,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-99-CR-202-1
                      --------------------
                          June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     Gabriel Escalera-Diaz appeals the 70-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that this opinion should not be published and is not precedent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.
                              -2-

     Escalera-Diaz 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. 466, 489-90; see also United States v. Dabeit, 231 F.3d

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

Escalera-Diaz’s argument is foreclosed.   The judgment of the

district court is AFFIRMED.
