                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 9, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-20491
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MELECIO MALDONADO-CANALES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02-CR-692-1
                      --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Melecio Maldonado-Canales appeals from his guilty-plea

conviction for illegal reentry into the United States following

conviction of an aggravated felony and deportation.     Maldonado-

Canales argues for the first time on appeal that 8 U.S.C.

§ 1326(b)(1) is unconstitutional because it permitted the

sentencing judge to find, under a preponderance of the evidence

standard, a fact which increased the statutory maximum sentence

to which he otherwise would have been exposed.   He thus contends


     *
        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that this opinion should not be published and is not precedent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. 03-20491
                                 -2-

that his sentence is invalid and argues that it should not exceed

the two-year maximum term of imprisonment prescribed in 8 U.S.C.

§ 1326(a).

       In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses.    The Court further held that the sentencing

provisions do not violate the Due Process Clause.     Id. at 239-47.

Maldonado-Canales acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

He seeks to preserve his argument for further review.

       Apprendi did not 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 follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted).    Accordingly, Maldonado-Canales’s first

argument is foreclosed.

       Maldonado-Canales also contends that the district court

erred by concluding that his prior convictions for delivery of

cocaine were not related for purposes of U.S.S.G. § 4A1.2(a)(2).

The district court correctly held that his prior crimes were not

part of a “single common scheme or plan.”    U.S.S.G. § 4A1.2,

comment. (n.3); see also United States v. Ford, 996 F.2d 83, 86
                            No. 03-20491
                                 -3-

(5th Cir. 1993).   Furthermore, although Maldonado-Canales asserts

that his prior crimes were related for purposes of U.S.S.G.

§ 4A1.2(a)(2) because they were functionally consolidated, he has

failed to make a sufficient showing to overcome the deference

afforded to the district court’s ruling on that matter.   See

Buford v. United States, 532 U.S. 59, 64 (2001).

     For his final argument, Maldonado-Canales asserts that the

special written condition of supervised release that Maldonado-

Canales not possess a “dangerous weapon” must be stricken from

the judgment of conviction because that condition was not orally

pronounced at sentencing.   His argument is foreclosed by this

court’s opinion in United States v. Torres-Aguilar, __ F.3d __

(5th Cir. Dec. 3, 2003, No. 03-40055), 2003 WL 22853762, at *3-4,

which was issued after Maldonado-Canales submitted the instant

appeal brief.

     Accordingly, the district court’s judgment is AFFIRMED.
