                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 5, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 02-41705
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ISRAEL PINEDA-CORTES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-1010-ALL
                       --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Israel Pineda-Cortes appeals his guilty-plea conviction and

sentence for illegal entry after deportation.   Pineda argues that

a driving-while-intoxicated (DWI) sentence should not have been

assigned two criminal-history points because the sentence was

imposed more than 10 years prior to the commencement of the

instant offense.   He also argues that an evading-arrest sentence

should not have been assigned any criminal-history points because


     *
        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that this opinion should not be published and is not precedent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. 02-41705
                                -2-

evading arrest is similar to the offense of resisting arrest.

     Pineda’s DWI sentence should not have been considered in

calculating his criminal-history score because it occurred more

than 10 years before the instant offense.    U.S.S.G. § 4A1.1; see

also U.S.S.G. § 4A1.2(e)(2) and (3).   Under U.S.S.G. § 4A1.2(c)

and United States v. Moore, 997 F.2d 30, 33 (5th Cir. 1993),

Pineda’s evading-arrest sentence arguably also should not have

been counted for purposes of his criminal-history score.

However, because the district court could, on remand, impose the

same 21-month sentence, Pineda fails to demonstrate that his

substantial rights were affected by the district court’s error in

calculating his criminal-history category.     See United States v.

Leonard, 157 F.3d 343, 346 (5th Cir. 1998).    Consequently,

despite Pineda’s argument to the contrary, he fails to satisfy

the plain-error standard of review.    Id.

     Pineda contends that the sentence-enhancing provisions

contained in 18 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional on their face and as applied in light of

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

that his challenge to the constitutionality of 8 U.S.C.

§ 1326(b)(1) and (b)(2) is foreclosed by 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
                           No. 02-41705
                                -3-

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 marks and citation

omitted).   The district court’s judgment is AFFIRMED.
