                                                       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. 05-40513
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS MATUTE, also known as Ruben Dario Reyes-Zapata,

                                    Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                     USDC No. 7:04-CR-1012-ALL
                        --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Luis Matute appeals his guilty-plea conviction

and sentence for being found present in the United States

following deportation without having obtained the consent of the

Attorney General or the Secretary of the Department of Homeland

Security.   Matute argues, pursuant to Apprendi v. New Jersey,

530 U.S. 466 (2000), that the “felony” and “aggravated felony”

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

offense, not sentence enhancements, making those provisions


     *
       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this opinion should not be published and is not precedent except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. 05-40513
                                  -2-

unconstitutional.    He concedes that this argument is foreclosed

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

raises it for possible review by the Supreme Court.

     “Apprendi did not overrule Almendarez-Torres.”     United

States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001); see

Apprendi, 530 U.S. at 489-90.     We must follow the precedent set

in Almendarez-Torres unless the Supreme Court itself determines

to overrule it.     See Rivera, 265 F.3d at 312.

     AFFIRMED.
