                                                         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. 04-40389
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

EMERITO ZELAYA-VASQUEZ,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:03-CR-328-1
                       --------------------

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

PER CURIAM:*

     Emerito Zelaya-Vasquez (Zelaya) appeals his guilty-plea

conviction and sentence for being found present in the United

States following deportation and removal, without having obtained

the consent of the Attorney General or the Secretary of the

Department of Homeland Security.    Zelaya 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.       He concedes that this

     *
       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this opinion should not be published and is not precedent except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. 04-40389
                                -2-

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.

     Zelaya also argues that his sentence violates Blakely v.

Washington, 124 S. Ct. 2531 (2004), because it is based on facts

not admitted or found by a jury.   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.
