                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 21, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40449
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE LUIS OLALDE-SERNA,
                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:03-CR-1001-1
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Jose Luis Olalde-Serna appeals his guilty-plea conviction

and sentence for being found illegally present in the United

States after deportation pursuant to 8 U.S.C. § 1326(a) and (b).

Olalde-Serna argues, pursuant to Apprendi v. New Jersey, 530 U.S.

466 (2000), that the “felony” and “aggravated felony” provisions

of 8 U.S.C. § 1326(b)(1) and (2) are elements of the offense, not

sentence enhancements, making those provisions unconstitutional.

He concedes that this argument is foreclosed by Almendarez-Torres


     *
        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that this opinion should not be published and is not precedent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. 04-40449
                                 -2-

v. United States, 523 U.S. 224 (1998), and he raises it for

possible review by the Supreme Court.

       This argument is foreclosed by Almendarez-Torres, 523 U.S.

at 235.    We must follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)

(internal quotation and citation omitted).

       Olalde-Serna also argues that the district court improperly

sentenced him based on facts not admitted or found by a jury in

violation of Blakely v. Washington, 124 S. Ct. 2531 (2004).    This

argument is foreclosed by United States v. Pineiro, 377 F.3d 464,

465-66 (5th Cir. 2004), petition for cert. filed (July 14, 2004).

       AFFIRMED.
