                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 18, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-41698
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JORGE ARMANDO JALOMO-GALLO,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-01-CR-569-ALL
                      --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jorge Armando Jalomo-Gallo (“Jalomo”) appeals from his

conviction of illegal reentry following deportation.      Jalomo

contends that the district court erred by denying his motions to

withdraw his guilty plea, suppress evidence, and dismiss his

indictment.    He contends that his 1996 deportation proceeding

violated the Due Process Clause because the immigration judge

erroneously informed him that he was not eligible for

discretionary relief from deportation.    Jalomo also contends, for


     *
        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that this opinion should not be published and is not precedent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. 02-41698
                                -2-

the first time on appeal, that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).    Jalomo

concedes that his contentions are foreclosed by this court’s case

law, but he raises them to preserve them for further review.

     An immigration judge’s error in not informing an alien of

eligibility for forms of discretionary relief does not violate

the alien’s right to due process.    United States v. Lopez-Ortiz,

313 F.3d 225, 230-31 (5th Cir. 2002), cert. denied, 537 U.S. 1135

(2003).   The district court did not err by denying Jalomo’s

motions to withdraw the plea, suppress evidence, and dismiss the

indictment.

     Apprendi did not overrule Almendarez-Torres v. United

States, 523 U.S. 224 (1998).   See Apprendi, 530 U.S. at 489-90;

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).    We

must follow Almendarez-Torres “unless and until the Supreme Court

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

(internal quotation and citation omitted).    Accordingly, Jalomo

has not established error, plain or otherwise, with respect to

his conviction under 8 U.S.C. § 1326(b)(2).

     AFFIRMED.
