                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  August 17, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-20598
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MIGUEL MAGALLON-MOLINA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:04-CR-53-1
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Having pleaded guilty to an indictment charging him with

being illegally present in the United States after deportation

following a conviction for an aggravated felony, Miguel Magallon-

Molina (“Magallon”) argues on appeal 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).    Magallon contends that Apprendi dictates that his




     *
       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this opinion should not be published and is not precedent except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. 04-20598
                                 -2-

conviction must be vacated and that he must be resentenced for

the lesser included offense of simple illegal reentry found in

§ 1326(a).   Magallon concedes that his argument is foreclosed by

this court’s precedent, but he raises the issue to preserve it

for Supreme Court review.

     We reject Magallon’s challenge to the constitutionality of

8 U.S.C. § 1326.   See Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998); Apprendi, 530 U.S. at 489-90.   This court

must follow the precedent set in Almendarez-Torres unless and

until the decision is overruled by the Supreme Court.     United

States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir. 2005),

petition for cert. filed (July 22, 2005) (No. 05-5469).

Accordingly, finding no error, we affirm.

     AFFIRMED.
