                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                              No. 00-40975
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JESUS ZARATE-HERNANDEZ,

                                           Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. M-00-101-1
                      --------------------
                         April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Jesus Zarate-Hernandez appeals his conviction and 70-month

sentence for being found in the United States after deportation

in violation of 8 U.S.C. § 1326.

     Zarate-Hernandez contends that the felony conviction that

resulted in his increased sentence under 8 U.S.C. § 1326(b)(2) is

an element of the offense that must have been charged in the

indictment.    Zarate-Hernandez acknowledges that this 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

     *
        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that this opinion should not be published and is not precedent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. 00-40975
                               -2-

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, 120 S. Ct. at 2362;

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

denied, __ U.S. __, No. 00-8299, 2001 WL 77067 (Feb. 26, 2001), .



     As Zarate-Hernandez concedes, his argument is foreclosed.

His conviction and sentence are AFFIRMED.
