                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 17, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40678
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ANTONIO GARCIA,

                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:03-CR-953-ALL
                         --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Antonio Garcia appeals his guilty-plea conviction and

sentence for being found present in the United States following

deportation and removal after having been convicted of an

aggravated felony, without having obtained the consent of the

Attorney General or the Secretary of the Department of Homeland

Security.   Garcia 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


     *
       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this opinion should not be published and is not precedent except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. 04-40678
                                  -2-

offense, not sentence enhancements, making those provisions

unconstitutional.    He concedes that this argument is foreclosed

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

raises it for possible review by the Supreme Court.

     “Apprendi did not overrule Almendarez-Torres.”     United

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

Apprendi, 530 U.S. at 489-90.     We must follow the precedent set

in Almendarez-Torres unless the Supreme Court itself determines

to overrule it.     See Rivera, 265 F.3d at 312.

     Garcia also argues that if Blakely v. Washington, 124 S. Ct.

2531 (2004), applies to the United States Sentencing Guidelines

his sentence could not be enhanced based on any prior convictions

unless he admitted to them or they were found by a jury beyond a

reasonable doubt.    As he concedes, this argument is foreclosed by

United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004),

petition for cert. filed (U.S. July 14, 2004) (No. 04-5263).

     AFFIRMED.
