                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-41395
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS HERNANDEZ-ESTALA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-03-CR-820-ALL
                      --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Luis Hernandez-Estala pleaded guilty and was convicted

of illegal re-entry in violation of 8 U.S.C. § 1326(b)(2) and

6 U.S.C. §§ 202, 557.   On appeal, Hernandez-Estala asserts that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.

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

     Hernandez-Estala concedes that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he


     *
       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this opinion should not be published and is not precedent except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. 03-41395
                                -2-

nevertheless seeks to preserve the issue for Supreme Court review

in light of the decision in Apprendi.     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).    We

must follow Almendarez-Torres unless and until the Supreme Court

overrules it.   See Dabeit, 231 F.3d at 984.

     Accordingly, the judgment of the district court is AFFIRMED.
