                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                                No. 02-50233
                              Summary Calendar



UNITED STATES OF AMERICA,

            Plaintiff-Appellee,

                                     versus

RIGOBERTO RIVERA-CASTRO, a/k/a Rigoberto Castro-Garcia,

            Defendant-Appellant.



            Appeal from the United States District Court
                  for the Western District of Texas
                      USDC No. 3:01-CR-1380-ALL

                              October 8, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Appellant Rivera-Castro appeals his sentence imposed following

his guilty plea conviction for illegal reentry into the United

States in violation of 8 U.S.C. § 1326.           Rivera argues that the

district court erred in sentencing him based on § 1326(b)(2), which

provides that an illegal alien who was removed from this country

subsequent to a conviction for an aggravated felony shall be

sentenced   to   not   more   than    twenty   years,   because   his   prior

     *
      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this opinion should not be published and is not precedent except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.
conviction was neither charged in his indictment nor presented to

the jury to be proven beyond a reasonable doubt.                 Although he

concedes that Almendarez-Torres v. United States1 held that a prior

aggravated felony is a sentencing factor, not an element of the

crime, he urges that Jones v. United States2 and Apprendi v. New

Jersey3 overruled Almendarez-Torres.             However, we have noted on

numerous      occasions   that   the   Supreme   Court   has   not   overruled

Almendarez-Torres, and that therefore we are still bound to apply

it.4

       Appellant’s sentence is therefore AFFIRMED.




       1
           523 U.S. 224 (1998).
       2
           526 U.S. 227 (1999).
       3
           530 U.S. 466 (2000).
       4
       See, e.g., United States v. Rayo-Valdez, – F.3d –, 2002 WL
1832140 (5th Cir. Aug. 12, 2002) (“We must follow [Almendarez-
Torres], which has not been overruled by the only court with the
power to do so, the Supreme Court.”); United States v. Rodriguez-
Montelongo, 263 F.3d 429, 434 (5th Cir. 2001) (“Although
[Appellant] is correct that Apprendi cast doubt on the continued
validity of Almendarez-Torres, it did not overrule that
decision.... It is for this court to apply the law as it exists and
for the Supreme Court to overrule its precedent if it so
chooses.”).


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