                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 01-10262
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

HERIBERTO NICOLAS MARIN-CARDONA,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 6:00-CR-48-1-C
                       --------------------
                          August 23, 2001

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

PER CURIAM:*

     Heriberto Nicolas Marin-Cardona appeals the 71-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.    Marin-Cardona argues that his sentence should not

have exceeded the two-year maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).    Marin-Cardona 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that this opinion should not be published and is not precedent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. 01-10262
                               -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).     Marin-

Cardona’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.    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.
