                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        May 27, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-41146
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                       GABRIEL PALACIOS-FRAUSTO,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:03-CR-974-ALL


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           Gabriel Palacios-Frausto (“Palacios”) appeals the forty-

six-month sentence imposed following his conviction for illegal

reentry into the United States after deportation.           He argues that

the enhancement provisions under 8 U.S.C. § 1326(b) are unconstitu-

tional.   He further argues that the “timing” of his prior felony

conviction, which was used to enhance his sentence, is a separate

fact that must be alleged in the indictment and proven to a jury

beyond a reasonable doubt.


     *
            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opinion should not be published and is not precedent except under the limited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.
            Palacios    acknowledges      that    his   first     argument    is

foreclosed by the Supreme Court’s decision in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), but he seeks to preserve the

issue for Supreme Court review in light of the decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000).              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).           The Supreme Court’s

recent decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004),

and United States v. Booker, 125 S. Ct. 738 (2005) did not overrule

Almendarez-Torres.      See Booker, 125 S. Ct. at 756; Blakely, 124

S. Ct. at 2536-43.       This court does not have the authority to

overrule Almendarez-Torres.       See Dabeit, 231 F.3d at 984.              Thus,

Palacios’s argument is foreclosed.

            Palacios’s argument that the indictment must allege the

“timing” of the prior felony conviction, which was used to enhance

his sentence under 8 U.S.C. § 1326(b), has no merit.              Palacios has

not   explained   why   an    indictment    that    need    not    allege    the

defendant’s prior conviction at all under Almendarez-Torres is

deficient for omitting the details of that prior conviction.

            Accordingly,     Palacios’s    conviction      and    sentence   are

AFFIRMED.




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