                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 11, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-40968
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MIGUEL BARRIGAS-VALDOVINOS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-03-CR-200-1
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Miguel Barrigas-Valdovinos (“Barrigas”) appeals his sentence

following his conviction for illegal reentry after deportation.

See 8 U.S.C. § 1326(a) and (b).   Prior to his deportation,

Barrigas had been convicted of a felony drug trafficking offense

for which he was sentenced to 180 days of custody, suspended

for three years of probation.   Because this prior sentence was

suspended, Barrigas contends that the district court plainly

erred by increasing his offense level for the instant offense

     *
        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that this opinion should not be published and is not precedent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. 03-40968
                                  -2-

by 12 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(B).     See also

U.S.S.G. § 2L1.2, comment. (n.1(A)(iv)) (defining “sentence

imposed”).     Given the lack of controlling authority in this

circuit on this issue, any error on the part of the district

court was not “clear or obvious” and could not have been plain

error.    See United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994) (en banc), abrogated in part, Johnson v. United

States, 520 U.S. 461 (1997).

       Barrigas also contends that the sentence-enhancing

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

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).     Barrigas acknowledges that his argument is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

but he asserts that the decision has been cast into doubt by

Apprendi.    He seeks to preserve his argument for further review.

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).     This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted).

       AFFIRMED.
