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

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40072
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARIO RODRIGUEZ RODRIGUEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-741-ALL
                      --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Mario Rodriguez-Rodriguez (“Rodriguez”) appeals his sentence

following his guilty-plea conviction of illegally reentering the

United States after having been deported previously following a

conviction for an aggravated felony.   He seeks to challenge the

constitutionality of 8 U.S.C. § 1326(b).    He argues that the

appeal waiver contained in his plea agreement does not bar the

instant appeal.




     *
       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this opinion should not be published and is not precedent except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. 05-40072
                                 -2-

       Rodriguez’s appeal waiver was rendered not knowing and

voluntary when the magistrate judge advised Rodriguez at his

rearraignment hearing that he could appeal an “illegal sentence.”

See United States v. Robinson, 187 F.3d 516, 517-18 (5th Cir.

1999).    Therefore, his appeal waiver does not bar the instant

appeal.

       Rodriguez argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional

in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000).      He

concedes that his challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), and he raises it to

preserve it for further review by the Supreme Court.

       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).    We therefore 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).

       AFFIRMED.
