                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 14, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 02-51358
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ISIDRO CASTILLO-HERNANDEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-02-CR-1173-ALL-DB
                       --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Isidro Castillo-Hernandez (“Castillo”) appeals his

conviction and sentence for illegal reentry subsequent to

deportation.   8 U.S.C. § 1326(b).   He argues that the district

court abused its discretion in excluding from the evidence at

trial the clothing he was wearing at the time of arrest.        He

contends it would have cast doubt upon the testimony of the

Government’s key witness, Border Patrol Agent Mesa, who testified



     *
        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that this opinion should not be published and is not precedent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. 02-51358
                                -2-

that Castillo’s clothes were wet and muddy when he was found near

the Rio Grande River.

     Although it is debatable whether the district court abused

its discretion in excluding the clothing, see e.g., United States

v. Colatriano, 624 F.2d 686, 689 (5th Cir. 1980), the error was

harmless.   Whether the clothes were still wet or muddy would not

necessarily have had an impact on Agent Mesa’s credibility, as

Officer Legaretta’s testimony indicated that Castillo may have

been allowed to clean up or change into clean clothes after his

arrest, thus clouding whether the clothes inventoried at the

prison were the ones Castillo was wearing when Agent Mesa

arrested him.   Moreover, the evidence showed that Castillo was

discovered 100 yards north of the border, that he admitted he was

not a United States citizen, that he did not have permission to

be in this country, and that he had been previously deported.     In

light of the overwhelming and unrebutted evidence of Castillo’s

guilt, the district court’s exclusion of the clothing was

harmless.   See United States v. Haese, 162 F.3d 359, 364 (5th

Cir. 1998).

     Castillo argues that under the reasoning of Apprendi v. New

Jersey, 530 U.S. 466 (2000), the sentencing provision of 8 U.S.C.

§ 1326(b)(2) is unconstitutional.   Castillo concedes that this

issue is foreclosed by Almendarez Torres v. United States, 523

U.S. 224, 235 (1998), but he raises it to preserve it for

possible Supreme Court review.
                            No. 02-51358
                                 -3-

     Apprendi did not overrule Almendarez-Torres.     See Apprendi,

530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000).   This court must therefore follow the

precedent set in Almendarez-Torres “unless and until the Supreme

Court itself determines to overrule it.”     Dabeit, 231 F.3d at 984

(internal quotation and citation omitted).

     AFFIRMED.
