                                                       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. 03-41133
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FRANCISCO JAVIER ACIAIN-PORRAS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. M-03-CR-68-1
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Francisco Javier Aciain-Porras appeals from his guilty-plea

conviction for being illegally present in the United States

following a previous deportation.   For the first time on appeal,

Aciain-Porras 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.   He thus contends that his sentence is invalid

     *
        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that this opinion should not be published and is not precedent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. 03-41133
                                -2-

and argues that it should not exceed the two-year maximum term of

imprisonment prescribed in 8 U.S.C. § 1326(a).

     Aciain-Porras 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.

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, as Aciain-Porras’s sole argument on appeal is

foreclosed, the district court’s judgment is AFFIRMED.
