                                                       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. 03-41188
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS VILLALOBOS-CARDENAS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-03-CR-408-1
                      --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Jesus Villalobos-Cardenas (“Villalobos”) appeals the

sentence imposed following his guilty-plea conviction for illegal

re-entry after deportation in violation of 8 U.S.C. § 1326.

Villalobos contends that 8 U.S.C. §§ 1326(b)(1) and (b)(2) are

unconstitutional because they are treated as sentencing

provisions rather than as elements of the offense.     He argues

that his sentence exceeds the two-year maximum term of

imprisonment which may be imposed under 8 U.S.C. § 1326(a).

     *
        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that this opinion should not be published and is not precedent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. 03-41188
                                 -2-

       In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses.    Villalobos acknowledges that his argument is

foreclosed by Almendarez-Torres but 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).    Accordingly, the judgment of the district

court is AFFIRMED.
