                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 16, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40504
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MIGUEL ANGEL VENCES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-941-ALL
                      --------------------

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

PER CURIAM:*

     Miguel Angel Vences appeals his conviction and sentence for

attempted illegal reentry.   He argues that the district court

plainly erred by characterizing his state felony conviction for

possession of a controlled substance as an “aggravated felony”

for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C.

§ 1101(a)(43)(B), when that same offense was punishable only as a

misdemeanor under federal law.   This issue, however, is

foreclosed by United States v. Hinojosa-Lopez, 130 F.3d 691 (5th


     *
       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this opinion should not be published and is not precedent except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. 04-40504
                                 -2-

Cir. 1997), and, therefore, Vences has not demonstrated plain

error.

       Vences concedes that the issue whether 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), is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), and he raises it solely to preserve its

further review by the Supreme Court.    Apprendi did not overrule

Almendarez-Torres.    See Apprendi, 530 U.S. at 489-90.    This court

must therefore follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000) (internal quotation and citation omitted).

       Accordingly, Vence’s arguments are foreclosed, and his

conviction and sentence are AFFIRMED.      We REMAND to the district

court for correction of the judgment pursuant to FED. R. CRIM.

P. 36 to reflect that Vences was convicted of a violation of 8

U.S.C. § 1326 for attempted illegal reentry, not illegal reentry,

into the United States after deportation.
