                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40118
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ANGEL MARTIN GAONA-TOVAR,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-03-CR-1309-ALL
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Angel Martin Gaona-Tovar appeals his conviction and sentence

following his guilty plea conviction for attempted illegal

reentry into the United States subsequent to deportation

following a conviction for an aggravated felony, in violation of

8 U.S.C. § 1326.   Gaona-Tovar argues that the district court

erred by enhancing his base offense level sixteen levels pursuant

to U.S.S.G. § 2L1.2(b)(1)(A)(vii), based on a determination that

his prior conviction for transporting an unlawful alien was an


     *
       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this opinion should not be published and is not precedent except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. 04-40118
                                -2-

alien smuggling offense.   As Gaona-Tovar concedes, his argument

is foreclosed by United States v. Solis-Campozano, 312 F.3d 164,

167-68 (5th Cir. 2002), cert. denied, 538 U.S. 991 (2003).

     For the first time on appeal, Gaona-Tovar argues that

8 U.S.C. § 1326(b) is unconstitutional on its face and as applied

in his case because it does not require the fact of a prior

felony or aggravated felony conviction to be charged in the

indictment and proved beyond a reasonable doubt.    Gaona-Tovar

acknowledges that his arguments are foreclosed by

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

wishes to preserve the issues for Supreme Court review in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000).     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).

Thus, we 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).

     Accordingly, Gaona-Tovar’s arguments are foreclosed, and his

conviction and sentence are AFFIRMED.     We REMAND to the district

court for correction of the judgment pursuant to FED. R. CRIM. P.

36 to reflect that Gaona-Tovar was convicted of a violation of 8

U.S.C. § 1326 for attempted illegal reentry, not illegal reentry,

into the United States after deportation.
