                                                       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. 03-41290
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE RAMIREZ-HAREO, also known as
Jose Ilario Ramirez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-473-1
                      --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Jose Ramirez-Hareo appeals his conviction and sentence for

being an alien unlawfully found in the United States after

deportation after having been convicted of an aggravated felony

in violation of 8 U.S.C. § 1326(a) & (b).     For the first time on

appeal, Ramirez-Hareo 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


     *
        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that this opinion should not be published and is not precedent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. 03-41290
                                  -2-

felony conviction to be charged in the indictment and proved

beyond a reasonable doubt.

     Ramirez-Hareo acknowledges that his arguments are foreclosed

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

he wishes to preserve the issues for Supreme Court review in

light of 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).   Thus, we 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, Ramirez-Hareo’s arguments are foreclosed, and

his conviction and sentence are AFFIRMED.
