                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                     April 20, 2004

                                                             Charles R. Fulbruge III
                                                                     Clerk
                          No. 03-41180 c/w
                            No. 03-41195
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FERNANDO URIBE-JIMENEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                      USDC No. B-03-CR-299-1
                       --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Fernando    Uribe-Jimenez   (Uribe)   appeals   his     guilty-plea

convictions of transporting an illegal alien and illegal reentry

into the United States after having been convicted of an aggravated

felony and deported.   The pleas were taken separately.         There was

a written plea agreement in the alien-transporting case; there was

no plea agreement in the illegal reentry case.       Because the alien

transportation offense is a “specific offense characteristic” of


     *
        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that this opinion should not be published and is not precedent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.
illegal reentry under U.S.S.G. § 2L1.2(b)(1)(A), the offenses were

grouped pursuant to U.S.S.G. § 3D1.2(c), and the sentence was based

on the guidelines for illegal-reentry.

     Uribe contends that the Government breached the written plea

agreement by not orally recommending a downward departure for

Uribe’s early cooperation.      Absent any objection in the district

court, we review for plain error only.            See United States v.

Reeves, 255 F.3d 208, 210 (5th Cir. 2001).         The inclusion of the

Government’s recommendation in the Presentence Report fulfilled the

Government’s plea-agreement obligation to recommend a downward

departure for that offense.      See United States v. Cates, 952 F.2d

149, 153 (5th Cir. 1992).            Moreover, a downward departure as

promised in the alien-transporting case would not have affected

Uribe’s substantial rights because it would have had no effect on

the overall sentence, which was based on the illegal reentry

offense.     Uribe shows no plain error.

     For the first time on appeal, Uribe argues that 8 U.S.C.

§ 1326(b) is unconstitutional 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.              He thus

contends that his sentence is invalid and argues that it should not

exceed the two-year maximum term of imprisonment prescribed in 8

U.S.C. § 1326(a).

     Uribe     acknowledges   that    his   argument   is   foreclosed   by

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


                                      2
asserts that the decision has been cast into doubt by Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000).        He seeks to preserve his

argument   for   further   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 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).

     AFFIRMED.




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