               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-40008
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

CESAR DIAZ TREVINO,

                                         Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 1:00-CR-31-ALL
                       - - - - - - - - - -
                         August 22, 2001

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

PER CURIAM:*

     Cesar Diaz Trevino appeals the 45-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.

     Trevino 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


     *
        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this opinion should not be published and is not precedent except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. 01-40008
                                -2-

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).   Trevino’s

argument is foreclosed.   The judgment of the district court is

AFFIRMED.
