                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 30, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-50494
                          Summary Calendar



UNITED STATES OF AMERICA,
                                     Plaintiff-Appellee,

versus

MOISES MARTINEZ-CANTU,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 2:03-CR-626-1-AML
                       --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

     Moises Martinez-Cantu appeals his jury-trial conviction for

illegal reentry following deportation.       He first argues that the

evidence was insufficient to support his conviction.       To obtain a

conviction for illegal reentry, the Government must establish four

elements: (1) alienage, (2) deportation, (3) reentry into or

unlawful presence in the United States, and (4) lack of the

Attorney General’s consent to reenter.    See 8 U.S.C.

§ 1326(a); United States v. Sanchez-Milam, 305 F.3d 310, 312 (5th

Cir. 2002).    Martinez-Cantu challenges only the last element.

     *
       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this opinion should not be published and is not precedent except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. 04-50494
                                      -2-

       The evidence was more than sufficient to establish the lack of

the Attorney General’s consent to reenter into the United States.

The Government offered a certificate of nonexistence of record

which   satisfies    the    Government’s    burden    of    proving     that   the

Attorney General had not consented to reentry.               Id.

       Moreover, there was testimony showing that Martinez-Cantu did

not have any documentation to allow him to enter into the United

States after his deportation; he admitted as much to immigration

officials.    Viewing this evidence in the light most favorable to

the    Government,   a   reasonable    jury   could       have    concluded    that

Martinez-Cantu did not obtain the Attorney General’s consent to

reenter the United States.        United States v. Ortega Reyna, 148 F.3d

540, 543 (5th Cir. 1998).

       Martinez-Cantu argues that 8 U.S.C. § 1326(b)(1) & (2) were

rendered unconstitutional by Apprendi v. New Jersey, 530 U.S. 466

(2000), but he concedes that the issue is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), and he raises it

solely to    preserve      its   further   review    by    the    Supreme   Court.

“Apprendi did not overrule Almendarez-Torres.”                   United States v.

Rivera, 265 F.3d 310, 312 (5th Cir. 2001); see Apprendi, 530 U.S.

at 489-90. This court must follow the precedent set in Almendarez-

Torres unless the Supreme Court overrules it.              Rivera, 265 F.3d at

312.    The judgment of the district court is AFFIRMED.
