                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS      August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 04-40110
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

HUGO ISRAEL ZACARIAS-CARBAJAL,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-838-1
                      --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Hugo Israel Zacarias-Carbajal appeals the sentence imposed

following his guilty plea conviction of being found in the United

States after deportation in violation of 8 U.S.C. § 1326.

Zacarias-Carbajal contends that the "felony" and "aggravated

felony" provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional.   He therefore argues that his conviction must

be reduced to one under the lesser included offense found in

8 U.S.C. § 1326(a), his judgment must be reformed to reflect a


     *
       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this opinion should not be published and is not precedent except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. 04-40110
                                 -2-

conviction only under that provision, and his sentence must be

vacated and the case remanded for resentencing to no more than

two years' imprisonment and one year of supervised release.

       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.    The Court further held that the sentencing

provisions do not violate the Due Process Clause.     Id. at 239-47.

Zacarias-Carbajal acknowledges that his arguments are 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 arguments 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).    The judgment of the district court is

AFFIRMED.
