                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-41429
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN CARLOS CANDANOZA-RUIZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. B-03-CR-393-ALL
                      --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Juan Carlos Candanoza-Ruiz appeals his guilty-plea

conviction and sentence for violating 8 U.S.C. § 1326(a) and (b)

by entering the United States, without permission, following both

his conviction for an aggravated felony and subsequent

deportation.

     For the first time on appeal, Candanoza argues that 8 U.S.C.

§ 1326(b) is unconstitutional because it treats a prior

conviction for a felony or aggravated felony as a sentencing


     *
       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this opinion should not be published and is not precedent except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. 03-41429
                                  -2-

factor and not as an element of the offense.    He asks us to

vacate his conviction and sentence, reform the judgment to

reflect a conviction only under 8 U.S.C. § 1326(a), and remand

his case for resentencing.

       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.    Candanoza acknowledges that his argument is

foreclosed by Almendarez-Torres, but he 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).

       AFFIRMED.
