                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 18, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-41078
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAIME LEIJA-MARTINEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. B-03-CR-348-ALL
                      --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jaime Leija-Martinez (Leija) pleaded guilty to an indictment

charging that he was found in the United States after having been

deported and convicted of an aggravated felony.   For the first

time on appeal, he argues that 8 U.S.C. § 1326(b)(1) and (b)(2)

are unconstitutional in light of the Supreme Court's ruling in

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).      Leija concedes

that his argument is foreclosed by Almendarez-Torres, but he

nevertheless seeks to preserve the issue for 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that this opinion should not be published and is not precedent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 forth in 5TH CIR.
R. 47.5.4.
                            No. 03-41078
                                 -2-

review.   He also challenges the provision of the written judgment

that prohibits him from possessing a dangerous weapon, arguing

that such provision conflicts with the district court’s oral

sentence.    Because both of Leija’s arguments are directly

foreclosed by circuit precedent, we pretermit a determination

whether Leija waived his arguments under the terms of the plea

agreement.    The Government’s motion to dismiss the appeal based

on the waiver is DENIED.

     Apprendi did not overrule Almendarez-Torres.     See Apprendi,

530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000).    This court must therefore 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 and citation omitted).    Accordingly, Leija's

argument that 8 U.S.C. § 1326(b) is unconstitutional based on the

decision in Apprendi is without merit.

     If the district court orally imposes a sentence of

supervised release without stating the conditions applicable to

the supervision period, the written judgment’s inclusion of

conditions that are mandatory, standard, or recommended by

the Sentencing Guidelines does not create a conflict with the

oral pronouncement of sentence.    See United States v.

Torres-Aguilar, 352 F.3d 394, 937-38 (5th Cir. 2003).

Possession of any “dangerous weapon” during the term of

supervised release is a “standard” condition; therefore, the
                           No. 03-41078
                                -3-

district court’s written judgment does not conflict with the

court’s oral pronouncement of sentence.   Id.   Leija’s reliance

on unpublished and non-binding authority to the contrary is

unavailing.   See 5TH CIR. R. 47.5.4; United States v. Rodriguez-

Montelongo, 263 F.3d 429, 433 & n.3 (5th Cir. 2001).

     AFFIRMED.   MOTION DENIED.
