                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 12, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40153
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NOE SIFUENTES-FLORES,
also known as Carlos Solares-Hernandez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-102-ALL
                      --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Noe Sifuentes-Flores (“Sifuentes”) appeals from his

conviction of being found in the United States after a previous

deportation, in violation of 8 U.S.C. § 1326.   Sifuentes contends

for the first time on appeal that the district court erred by

characterizing his state conviction for possession of a

controlled substance as an aggravated felony because a prior

conviction must qualify as a felony under federal law in order to

be an aggravated felony under the guidelines.   He further

     *
       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this opinion should not be published and is not precedent except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. 05-40153
                                -2-

contends that the “felony” and “aggravated felony” sentencing-

enhancement provisions of 8 U.S.C. § 1326(b) are facially

unconstitutional because Almendarez-Torres v. United States,

523 U.S. 224 (1998), has been undercut by later Supreme Court

opinions.   Sifuentes concedes that his contentions are foreclosed

by this court’s caselaw.

     Sifuentes’s contentions are foreclosed.   First, Sifuentes’s

prior state felony conviction for possession of a controlled

substance qualifies as an aggravated felony under U.S.S.G.

§ 2L1.2(b) despite the fact that the same offense is punishable

only as a misdemeanor under federal law.   See United States v.

Caicedo-Cuero, 312 F.3d 697, 705-11 (5th Cir. 2002); United

States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).

Second, this court must follow 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 marks and citation omitted).

     AFFIRMED.
