                                                          United States Court of Appeals
                                                                   Fifth Circuit

                                                               FILED
                 IN THE UNITED STATES COURT OF APPEALS        June 22, 2004
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                              No. 03-41457
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GUILLERMO CUELLAR-TORRES,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. M-03-CR-549-1
                         --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Guillermo Cuellar-Torres (Cuellar) pleaded guilty to being a

previously-deported alien unlawfully present and found in the

United States without permission, in violation of 8 U.S.C.

§ 1326(a).     The district court sentenced Cuellar to 41 months’

imprisonment, followed by two years’ supervised release.

     Cuellar argues that the district court’s factual finding

underlying his denial of a downward departure was clearly

erroneous.     This court has no jurisdiction to review the district


     *
       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this opinion should not be published and is not precedent except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. 03-41457
                                 -2-

court’s decision because “the court’s refusal is based on its

determination that the departure is not warranted on the facts of

the case.”    United States v. Buck, 324 F.3d 786, 797 (5th Cir.

2003).    This portion of Cuellar’s appeal is DISMISSED.

       Cuellar also argues that the offense for which he was

indicted has a maximum sentence of two years’ imprisonment

because the indictment did not allege that he had a prior

conviction for an aggravated felony.    See 8 U.S.C. § 1326(a),

(b).    Cuellar acknowledges that his argument is foreclosed by

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

he asserts that the decision has been cast into doubt by Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000).    He seeks to preserve

his argument for further review.

       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).    This court 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).    This part of the district court’s judgment is

AFFIRMED.

       APPEAL DISMISSED FOR LACK OF JURISDICTION IN PART; AFFIRMED

IN PART.
