                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   June 22, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-41139
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MARCOS GALLEGOS-GARCIA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:04-CR-163-1
                      --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Marcos Gallegos-Garcia (“Gallegos”) has moved to withdraw

certain appellate issues from his brief.    The motion is GRANTED.

Gallegos pleaded guilty to illegal reentry into the United States

following deportation and was sentenced to a 36-month term of

imprisonment.   He argues that his sentence is unconstitutional

because it was enhanced for a prior felony conviction under 8

U.S.C. § 1326(b).   Gallegos concedes that his argument is




     *
       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this opinion should not be published and is not precedent except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. 04-41139
                                -2-

foreclosed by this court’s precedent, but he raises the issue to

preserve it for Supreme Court review.

     We reject Gallegos’s challenge to the constitutionality of 8

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

224 (1998); Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000).

This court must follow Almendarez-Torres “unless and until the

Supreme Court itself determines to overrule it.” United States v.

Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert. denied, 540

U.S. 935 (2003).

     MOTION TO WITHDRAW APPELLATE ISSUES GRANTED; AFFIRMED.
