               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT




                            No. 00-41009



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS CALDERON-MESA,

                                    Defendant-Appellant.


                       - - - - - - - - - -
          Appeal from the United States District Court
           for the Southern District of Texas, Laredo
                          L-00-CR-232-1
                       - - - - - - - - - -
                           May 14, 2001

Before JONES, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jesus Calderon-Mesa appeals from the sentence imposed upon

him following his guilty plea and conviction for the offense of

illegal re-entry into the United States following deportation; 8

U.S.C. § 1326(b).   Specifically, he contends that a prior offense

upon which his sentence was enhanced constitutes an element of

the offense and thus the failure of the superseding indictment to

allege the prior offense resulted in an illegal sentence.

     *
        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that this opinion should not be published and is not precedent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.
Calderon-Mesa's argument relies on Apprendi v. New Jersey, 120

S.Ct. 2348, 2362-63 (2000), for support.      He acknowledges that

his argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for

further review suggesting that Apprendi places the authority of

Almendarez-Torres in question.1      The Supreme Court expressly

declined to overrule Almendarez-Torres in Apprendi.       Accordingly,

we are required to follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”       United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),

cert. denied, 121 S.Ct. 1214 (2001).2

       The judgment of the district court is AFFIRMED.




       1
        We find no merit in the government's argument that
Calderon-Mesa failed to raise the issue in the district court.
       2
        In his original brief, Calderon-Mesa had raised in his
first issue attacks based on the purported failure of the
district court to follow Rule 11 of the Federal Rules of Criminal
Procedure. Prior to submission to the panel, Calderon-Mesa
withdrew his first issue complaints and accordingly they are not
before us and not considered on appeal.

                                     2
