                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 22, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-41644
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ELIAS MARTINEZ-MATA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. L-02-CR-440-1
                      --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Elias Martinez-Mata (“Martinez”) appeals his guilty-plea

conviction and sentence for illegal reentry following

deportation.   Martinez argues pursuant to Apprendi v. New Jersey,

530 U.S. 466 (2000), that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are elements of the

offense, not sentence enhancements, making those provisions

unconstitutional.   Martinez concedes that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

     *
        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that this opinion should not be published and is not precedent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. 02-41644
                               -2-

(1998), and he raises it for possible direct review by the

Supreme Court.

     Martinez’s Apprendi argument is foreclosed by

Almendarez-Torres, 523 U.S. at 235.   We must follow the precedent

set in 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 and citation

omitted).

     AFFIRMED.
