                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 01-50956
                         Conference Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JOSE ROBERTO ORTIZ-HERNANDEZ,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. EP-01-CR-500-ALL
                       --------------------
                          April 10, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Jose Roberto Ortiz-Hernandez appeals the 46-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after deportation in violation

of 8 U.S.C. § 1326.   Ortiz-Hernandez complains that his sentence

was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based

on his prior deportation following an aggravated felony

conviction.    Ortiz-Hernandez argues that the sentencing provision

violates the Due Process Clause because it permitted the

sentencing judge to find, under a preponderance of the evidence


     *
        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that this opinion should not be published and is not precedent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. 01-50956
                                -2-

standard, a fact which increased the statutory maximum sentence

to which he otherwise would have been exposed.   Ortiz-Hernandez

thus contends that his sentence is invalid and argues that it

should not exceed the two-year maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).

     Pursuant to a written plea agreement, Ortiz-Hernandez waived

the right to appeal his sentence.   Ortiz-Hernandez does not

challenge the validity of the waiver provision, and we are

satisfied that the waiver of appeal was voluntarily, knowingly,

and intelligently made.   Ortiz-Hernandez’s argument that his

waiver should not be enforced due to public policy concerns is

without merit.   Therefore, to the extent Ortiz-Hernandez’s

argument challenges his sentence, the appeal is DISMISSED.

     To the extent Ortiz-Hernandez’s argument may be construed as

challenging the validity of his conviction, it is not waived.

However, Ortiz-Hernandez acknowledges that his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998).   He 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, 531 U.S. 1202 (2001).

Accordingly, the judgment of the district court is AFFIRMED.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.   The motion is GRANTED.
                    No. 01-50956
                          -3-

DISMISSED IN PART; AFFIRMED IN PART; MOTION GRANTED.
