                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 10, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 03-40359
                        Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ABELARDO TREJO-SEGURA,
also known as Antonio Trejo-Segura,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-02-CR-778-1
                      --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Abelardo Trejo-Segura (Trejo-Segura) appeals his conviction

and sentence for being an alien unlawfully found in the United

States after deportation after having been convicted of an

aggravated felony in violation of 8 U.S.C. § 1326 (a) & (b).

     For the first time on appeal, Trejo-Segura argues that

8 U.S.C. § 1326(b) is unconstitutional on its face and as applied

in his case because it does not require the fact of a prior


     *
        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that this opinion should not be published and is not precedent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. 03-40359
                               -2-

felony or aggravated felony conviction to be charged in the

indictment and proved beyond a reasonable doubt.   He argues

further that because his indictment did not allege the fact of

his prior aggravated felony conviction as a separate element of

the offense, the indictment charged him only with an offense

under 8 U.S.C. § 1326(a) rather than 8 U.S.C. § 1326(b), and his

maximum punishment is limited to two years.

     Trejo-Segura acknowledges that his arguments are foreclosed

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

wishes to preserve the issues for Supreme Court review in light

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

Thus, we 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).

     Accordingly, Trejo-Segura's arguments are foreclosed, and

his conviction and sentence are AFFIRMED.
