                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 9, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 03-10563
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ARMANDO ESQUIVEL-ROMAN,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 6:03-CR-4-ALL-C
                      --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Armando Esquivel-Roman pleaded guilty to count one of an

indictment charging him for re-entering the United States

illegally after deportation.    He was sentenced to a 30-month term

of imprisonment and to a three-year period of supervised release.

     Esquivel contends that the district court erred in refusing

to depart downward on grounds of cultural assimilation.         The

record reflects that the downward departure was denied because

the district court believed it was unwarranted.    We lack

jurisdiction to review this ruling.     See United States v.

     *
       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this opinion should not be published and is not precedent except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. 03-10563
                                - 2 -

Rodriguez-Montelongo, 263 F.3d 429, 431 (5th Cir. 2001).    The

appeal is dismissed in part.

       Esquivel’s offense level was raised by eight levels pursuant

to U.S.S.G. § 2L1.2(b)(1)(D) because he was convicted for an

aggravated felony prior to deportation.    Esquivel contends that

the prior conviction constituted an element of the offense under

8 U.S.C. § 1326(b) and should not be regarded as a mere

sentencing factor.    Because the fact of the prior conviction was

not alleged in the indictment, he contends, his maximum sentence

should have been no more than 24 months under 8 U.S.C. § 1326(a).

He concedes that this argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), but asserts that

Almendarez-Torres has been called into doubt by 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).    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).    The district court’s judgment is affirmed in

part.

       AFFIRMED IN PART; DISMISSED IN PART.
