                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                November 9, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40471
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MARCOS ANTONIO DELMORAL,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 4:04-CR-109-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

 PER CURIAM:*

     Marcos Antonio Delmoral appeals from the sentence imposed

following his guilty plea to illegal reentry into the United

States following deportation.    See 8 U.S.C. § 1326.    He argues

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).    He concedes that his challenge

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998), and he raises it to preserve it for further

review by the Supreme Court.

     *
       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this opinion should not be published and is not precedent except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. 05-40471
                                 - 2 -

       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).     We therefore 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.
