                                                        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. 03-40821
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JORGE ARMANDO ROMERO-MARTINEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. M-03-CR-23-1
                       --------------------

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

PER CURIAM:*

     Jorge Armando Romero-Martinez appeals his illegal reentry

conviction.    Romero concedes that the issue whether the “felony”

and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1)&(2)

are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), and he raises it solely to preserve its

further review by the Supreme Court.    Apprendi did not overrule

Almendarez-Torres.    See Apprendi, 530 U.S. at 489-90.     This 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that this opinion should not be published and is not precedent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. 03-40821
                                 -2-

must therefore follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000) (internal quotation and citation omitted).

       AFFIRMED.
