                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 29, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 02-21333
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

ROBERTO IGNACIO CARDENAS

                     Defendant - Appellant

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. H-02-CR-335-ALL
                       --------------------

Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

PER CURIAM:*

     Roberto Ignacio Cardenas appeals from his sentence following

his guilty plea to illegal re-entry in violation of 8 U.S.C.

§ 1326.   Cardenas argues that the district court erroneously

applied an 8-level enhancement for a prior aggravated felony

under U.S.S.G. § 2L1.2(b)(1)(C).    Cardenas was previously

convicted in California for receipt of stolen property and was

sentenced to 48 months of probation with a 12-month jail term

ordered as a condition of probation.    Relying on United States v.

     *
        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that this opinion should not be published and is not precedent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. 02-21333
                                -2-

Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999), Cardenas argues

that his prior conviction does not meet the definition of an

aggravated felony because he was sentenced directly to probation,

albeit with the 12-month jail term, and that his confinement as a

condition of probation was not a term of imprisonment.

     Cardenas concedes that he did not specifically raise in the

district court the arguments he advances on appeal, but he argues

that the issue was preserved because his comments in the district

court were the functional equivalent of an objection and because

the district court indicated that it had considered his arguments

"every which way."   We are unpersuaded.   "'A party must raise a

claim of error with the district court in such a manner so the

district court may correct itself and thus, obviate the need for

our review.'"   United States v. Krout, 66 F.3d 1420, 1434 (5th

Cir. 1995)(citation omitted).   Because Cardenas objected to his

sentence in the district court on grounds different from those

raised on appeal, our review is for plain error.     United States

v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).    We

conclude that Cardenas has failed to show that any error in the

district court's application of the enhancement under U.S.S.G.

§ 2L1.2(b)(1)(C) was plain or obvious.     See United States v.

Olano, 507 U.S. 725, 731-37 (1993); U.S.S.G. § 2L1.2, comment.

(n.2); 8 U.S.C. § 1101(a)(43)(G)(aggravated felony means "a theft

offense (including receipt of stolen property) or burglary
                            No. 02-21333
                                 -3-

offense for which the term of imprisonment [is] at least one

year").

     For the first time on appeal, Cardenas also argues that

8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional because

they treat the fact of a prior aggravated felony as a sentencing

enhancement to be found by a judge, rather than a separate

element of the offense to be charged in the indictment.    He

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), but wishes to

preserve the issue for Supreme Court review in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000).

     Apprendi did not overrule Almendarez-Torres.     See Apprendi,

530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000).   This court must therefore follow the

precedent set in Almendarez-Torres "unless and until the Supreme

Court itself determines to overrule it."     Dabeit, 231 F.3d at 984

(internal quotation and citation omitted).

     AFFIRMED.
