                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 17, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40175
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAFAEL VILLALOBOS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:03-CR-963-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Rafael Villalobos appeals from his guilty-plea conviction of

reentry of a deported alien, in violation of 8 U.S.C.

§ 1326(b)(2) and 6 U.S.C. §§ 202, 557.   He argues that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).

     As Villalobos concedes, his argument that the sentencing

provisions in 8 U.S.C. § 1326(b) are unconstitutional was

rejected in Almendarez-Torres, 523 U.S. 224, 235 (1998).

     *
       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this opinion should not be published and is not precedent except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. 04-40175
                                -2-

Apprendi did not overrule Almendarez-Torres.   See Apprendi, 530

U.S. at 489-90.   This court must follow the precedent set in

Almendarez-Torres unless the Supreme Court overrules it.   See

United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001).

Villalobos’s argument is foreclosed.

     The judgment of the district court is AFFIRMED.
