                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 18, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-40917
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ESTEBAN MARQUEZ-CONDE,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-03-CR-225-1
                      --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Esteban Marquez-Conde appeals the sentence imposed following

his guilty-plea conviction for being found in the United States

after deportation in violation of 8 U.S.C. § 1326.     Marquez-Conde

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 unconstitutional.        Marquez-

Conde concedes that this argument is foreclosed by


     *
        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that this opinion should not be published and is not precedent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. 03-40917
                               -2-

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), and

he raises it for possible review by the Supreme Court.

     Marquez-Conde’s Apprendi argument is foreclosed by

Almendarez-Torres, 523 U.S. at 235.   We must follow the precedent

set in Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”    United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000) (internal quotation and citation

omitted).

     AFFIRMED.
