                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 01-10214
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

FRANCISCO RODRIGUEZ-ALVAREZ,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 6:00-CR-46-1-C
                       --------------------
                          August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

     Francisco Rodriguez-Alvarez appeals the 57-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.    Rodriguez-Alvarez argues that his sentence should

not have exceeded the two-year maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).    Rodriguez-Alvarez acknowledges

that his argument is foreclosed by the Supreme Court’s decision

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



     *
        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that this opinion should not be published and is not precedent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. 01-10214
                                  -2-

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).

Rodriguez-Alvarez’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 to dismiss this appeal.     The Government’s motion

to dismiss is DENIED.   However, in light of our decision to

affirm the district court’s judgment, the Government need not

file an appellee’s brief.

     AFFIRMED; MOTION TO DISMISS DENIED.
