                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 24, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 02-40876
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GABRIEL MANZO-LOPEZ,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. B-02-CR-21-1
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Gabriel Manzo-Lopez appeals his conviction of illegal

reentry following deportation.   He argues that his previous

deportation proceeding was fundamentally unfair due to the

retroactive application of statutory changes to the immigration

laws barring him from seeking a waiver of deportation.      He

acknowledges that his argument is foreclosed by circuit precedent

but he wishes to preserve the issue for further review.



     *
        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that this opinion should not be published and is not precedent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. 02-40876
                                 -2-

     Manzo-Lopez’s deportation proceeding was not rendered

fundamentally unfair because he was not able to argue for a

waiver of deportation.    See United States v. Lopez-Ortiz, 313

F.3d 225, 231 (5th Cir. 2002), cert. denied, 123 S. Ct. 922

(2003).

     Manzo-Lopez argues for the first time on appeal that 8

U.S.C. § 1326(b)(1) and (2) is unconstitutional because a prior

felony conviction is an element of the offense of illegal re-

entry, and not merely a sentence enhancement, and should have

been charged in the indictment and proven beyond a reasonable

doubt.    He acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but

seeks to preserve the issue for further review.

      Apprendi v. New Jersey, 530 U.S. 466 (2000) 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).    Accordingly,

the judgment of the district court is AFFIRMED.
