                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   January 12, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40923
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

JESUS ALBERTO HERNANDEZ-GONZALEZ

                     Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-204-ALL
                      --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.

PER CURIAM:*

     Jesus Alberto Hernandez-Gonzalez appeals from the sentence

imposed following his guilty-plea conviction for illegal reentry

into the United States following deportation pursuant to an

aggravated-felony conviction.    He first argues that the district

court erred in calculating his criminal history score, which

affected his criminal history category.       Hernandez admits that

this error is reviewed only for plain error because he failed to

challenge that calculation in district court.       When reviewing 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this opinion should not be published and is not precedent except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. 04-40923
                                  -2-

plain error in the sentencing context, “this court has concluded

that if the trial judge, on remand, could reinstate the same

sentence, it will uphold the sentence imposed despite the trial

court’s error.”     United States v. Leonard, 157 F.3d 343, 346 (5th

Cir. 1998).   Despite Hernandez’ arguments to the contrary,

Leonard is controlling precedent and may not be overruled by this

panel without en banc consideration or an intervening Supreme

Court opinion.     See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.

1997).   Hernandez admits that, even if his criminal history score

were corrected, the district court could impose the same 70-month

sentence on remand.    Accordingly, Hernandez has not shown plain

error.   See id.

     Also for the first time on appeal, Herandez 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

felony or aggravated felony conviction to be charged in the

indictment and proved beyond a reasonable doubt.      He thus

contends that his sentence is invalid and argues that it should

not exceed the two-year maximum term of imprisonment prescribed

in 8 U.S.C. § 1326(a).

     Hernandez acknowledges that his argument is foreclosed by

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

asserts that the decision has been cast into doubt by Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000).       He seeks to preserve his

argument for further review.     Apprendi did not overrule
                           No. 04-40923
                                -3-

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.

     AFFIRMED.
