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

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-41169
                        Conference Calendar



UNITED STATES OF AMERICA,
                                    Plaintiff-Appellee,

versus

HUMBERTO MARTINEZ-MARTINEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-287-1
                      --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Humberto Martinez-Martinez appeals his guilty-plea

conviction and sentence for being found illegally present in the

United States after deportation.   He argues, pursuant to Apprendi

v. New Jersey, 530 U.S. 466 (2000), that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are elements

of the offense, not sentence enhancements, making those

provisions unconstitutional.   Martinez concedes that this

argument is foreclosed and he raises it for possible review by

the Supreme Court.

     *
       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this opinion should not be published and is not precedent except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 for in 5TH CIR. R. 47.5.4.
                          No. 03-41169
                               -2-

     This argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998).    We must follow the precedent

set in Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”    United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000) (internal quotation and citation

omitted).

     AFFIRMED.
