                                                       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, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-50213
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SERGIO VIVAR-ACOSTA, also known as Sergio Vivar,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-03-CR-1893-ALL-KC
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Sergio Vivar-Acosta appeals the sentenced imposed following

his guilty-plea conviction for illegal reentry following

deportation subsequent to an aggravated-felony conviction, a

violation of 8 U.S.C. § 1326.

     Vivar argues that the imposition of his 60-month sentence

constitutes a due process violation in light of Apprendi v. New

Jersey, 566 U.S. 430 (2000), because his prior aggravated felony

conviction was not alleged in the indictment.   Vivar’s challenge


     *
       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this opinion should not be published and is not precedent except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. 04-50213
                                 -2-

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 227-47 (1998), in which the Supreme Court held that Congress

intended to set forth sentencing factors in 8 U.S.C. § 1326(b),

not a separate criminal offense, and that the sentencing

provisions in 8 U.S.C. § 1326(b) were not unconstitutional.       The

Supreme Court in Apprendi expressly declined to 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 therefore follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    Dabeit, 231 F.3d at 984.   Thus, to the extent Vivar

challenges that district court’s rejection of his Apprendi

argument, the judgment of the district court is AFFIRMED.

       Vivar argues that the district court erroneously calculated

his criminal history points when it assigned three criminal

history points to his 1999 conviction for burglary.    The plain

error standard of review governs this issue since it was not

raised below.    United States v. Wilder, 15 F.3d 1292, 1301 (5th

Cir. 1994).    The Government concedes that there was an error,

that the error was clear or obvious, and that the error affected

Vivar’s substantial rights.    See United States v. Olano, 507 U.S.

725, 732 (1993) (setting forth elements of plain error review).

       The text of the Presentence Report (“PSR”) states that for

the offense at issue Vivar was sentenced to a total of seven

months of incarceration.    In accordance with the relevant
                           No. 04-50213
                                -3-

sentencing guidelines, this conviction should have received only

two criminal history points.   See U.S.S.G. § 4A1.1(b) & comment.;

U.S.S.G. § 4A1.2(b)(1) & (2); United States v. Carbajal, 290 F.3d

277, 283 (5th Cir.), cert. denied, 537 U.S. 934 (2002) (if the

guideline language is unambiguous, this court’s inquiry begins

and ends with an analysis of the plain meaning of that language).

Thus, the guidelines indicate that there was an error in the PSR.

The error also affected Vivar’s substantial rights, since Vivar’s

sentence is greater than the upper end of the correct guidelines

imprisonment range.   Additionally, the fairness of the judicial

proceeding was seriously affected because the increase in Vivar’s

sentence was erroneous and substantial.   See United States v.

Aderholt, 87 F.3d 740, 744 (5th Cir. 1996).   We therefore VACATE

the sentence insofar as its calculation includes three criminal

history points for Vivar’s 1999 burglary conviction and REMAND

for resentencing.

     AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR

RESENTENCING.
