                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 20, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-41102
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RAMIRO ROBLES-SALAS,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-175-1
                      --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Ramiro Robles-Salas (Robles) appeals the sentence following

his guilty-plea conviction for being found in the United States

after a prior deportation, in violation of 8 U.S.C. § 1326.         He

argues that the district court erred in going beyond the statute

of conviction and the charging instrument to determine that a 16-

level increase in his offense level was warranted under U.S.S.G.

§ 2L1.2(b)(1)(A)(vii).   This argument is foreclosed by our



     *
        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that this opinion should not be published and is not precedent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. 02-41102
                                 -2-

decision in United States v. Sanchez-Garcia, 319 F.3d 677 (5th

Cir. 2003).

     Robles again challenges the 16-level increase in his offense

level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(vii) on the basis

that his 1996 conviction for alien transporting is not an alien

smuggling offense.    He acknowledges that this argument is

foreclosed by United States v. Solis-Campozano, 312 F.3d 164 (5th

Cir. 2002), but seeks to preserve the issue for possible further

review.    In Solis-Campozano, 312 F.3d at 167-68, we held that the

term “alien smuggling offense,” as used in U.S.S.G.

§ 2L1.2(b)(1)(A) includes the offense of transporting aliens

within the United States.    Thus, the 16-level increase to Robles’

offense level was not error.

     Robles argues that the “felony” and “aggravated felony”

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

Supreme Court’s decision in Almendarez-Torres v. United States,

523 U.S. 224, 239-47 (1998), but seeks to preserve it for

possible further review in light of Apprendi v. New Jersey, 530

U.S. 466, 490 (2000).    Apprendi did not overrule

Almendarez-Torres.    See Apprendi, 530 U.S. at 489-90.   We must

follow Almendarez-Torres “unless and until the Supreme Court
                          No. 02-41102
                               -3-

itself determines to overrule it.”   United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000)(internal quotation marks and

citation omitted).

     AFFIRMED.
