                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40218
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

REYES VILLASENOR-ARROYO,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. L-03-CR-1560-1
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Reyes Villasenor-Arroyo appeals his guilty-plea conviction

and sentence for being found illegally present in the United

States after deportation pursuant to 8 U.S.C. § 1326(a) and (b).

Villasenor-Arroyo argues, pursuant to Apprendi v. New Jersey,

530 U.S. 466 (2000), that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are elements of the

offense, not sentence enhancements, making those provisions

unconstitutional.   He concedes that this argument is foreclosed


     *
        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that this opinion should not be published and is not precedent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. 04-40218
                                 -2-

by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and

he raises it for possible review by the Supreme Court.

       This argument is foreclosed by Almendarez-Torres, 523 U.S.

at 235.    We must 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)

(internal quotation and citation omitted).

       AFFIRMED.
