                                                       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. 03-40293
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARVIN STEVEN FLORES-BENITEZ,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. L-02-CR-1134-ALL
                        --------------------

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

PER CURIAM:*

     Marvin Steven Flores-Benitez appeals the sentence he

received following his guilty-plea conviction for illegally

reentering the United States after deportation subsequent to an

aggravated felony conviction, in violation of 8 U.S.C. § 1326.

He argues, for the first time on appeal, that the sentencing

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

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   He 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that this opinion should not be published and is not precedent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. 03-40293
                                -2-
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

seeks to preserve the issue for Supreme Court 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 the precedent set in

Almendarez-Torres "unless and until the Supreme Court itself

determines to overrule it."   Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted).

     AFFIRMED.
