                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40201
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CESAR LEONEL PINEDA-RODRIGUEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1200-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Cesar Leonel Pineda-Rodriguez appeals from his guilty-plea

conviction for illegal reentry of a deported alien.     Pineda-

Rodriguez argues that 8 U.S.C. § 1326(b) is unconstitutional on

its face and as applied in his case 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.

Pineda-Rodriguez acknowledges that his argument is foreclosed by

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

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

     *
       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this opinion should not be published and is not precedent except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. 05-40201
                                -2-

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.
