                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 21, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-41128
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE MAGALLANES-NIETO,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-250-1
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Jose Magallanes-Nieto (Magallanes) appeals his guilty-plea

conviction and sentence for being unlawfully present in the

United States following deportation.   He argues that his prior

Texas state conviction for unauthorized use of a motor vehicle

was not an “aggravated felony” and, therefore, did not warrant an

eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C).        He also

contends that the district court lacked jurisdiction to convict

and sentence him because the felony and aggravated felony

     *
        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that this opinion should not be published and is not precedent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. 03-41128
                                 -2-

provisions in 8 U.S.C. §§ 1326(b)(1) & (b)(2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).

     Magallanes concedes that these arguments are foreclosed but

seeks to preserve further review by the Supreme Court.    This

court has previously held that a conviction for unauthorized use

of a motor vehicle is a crime of violence under 18 U.S.C. § 16

and will support the aggravated felony enhancement in § 2L1.2.

United States v. Galvan-Rodriguez, 169 F.3d 217, 220 (5th Cir.

1999).    We are bound by this court’s precedent absent an

intervening Supreme Court decision or a subsequent en banc

decision.    See United States v. Garcia Abrego, 141 F.3d 142, 151

n.1 (5th Cir. 1998).

     Magallanes’ Apprendi argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998).    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).

Accordingly, Magallanes’ conviction and sentence are AFFIRMED.
