                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 11, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-41697
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RAFAEL ANTONIO URQUILLA-AVALOS,

                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:04-CR-533-ALL
                        --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Rafael Antonio Urquilla-Avalos unconditionally pleaded

guilty to unlawful presence in the United States after

deportation following a felony conviction for a drug trafficking

offense.    He was sentenced to 37 months of imprisonment and three

years of supervised release.   He appeals his conviction and

sentence.

     The Government correctly argues that Urquilla-Avalos’

unconditional guilty plea waived all non-jurisdictional defects


     *
       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this opinion should not be published and is not precedent except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. 04-41697
                                  -2-

in the trial court proceedings against Urquilla-Avalos and bars

an as-applied constitutional challenge to 8 U.S.C. § 1326(b).

United States v. Spruill, 292 F.3d 207, 215 (5th Cir. 2002);

United States v. Johnson, 194 F.3d 657, 659 (5th Cir. 1999),

vacated on other grounds and remanded, 530 U.S. 1201 (2000),

prior opinion reinstated with modification, 246 F.3d 749 (5th

Cir. 2001).   However, Urquilla-Avalos’ unconditional guilty plea

did not waive his right to assert that 8 U.S.C. § 1326(b) was

facially unconstitutional.    See United States v. Knowles, 29 F.3d

947, 952 (5th Cir. 1994) (citing Menna v. New York, 423 U.S. 61,

62 (1975) (state court conviction)).

     For the first time on appeal, Urquilla-Avalos contends that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) are unconstitutional.    As Urquilla-Avalos concedes,

this argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), which this court must follow "unless

and until the Supreme Court itself determines to overrule it.”

United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.

2005) (internal quotation marks and citation omitted), petition

for cert. filed (July 22, 2005) (No. 05-5469).

     The conviction and sentence are AFFIRMED.
