                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-41141
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE JOAQUIN PEQUE-PEREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-03-CR-386-ALL
                      --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Jose Joaquin Peque-Perez appeals his guilty plea conviction

and 78-month sentence for illegal reentry into the United States

following an aggravated felony conviction in violation of

8 U.S.C. § 1326.   For the first time on appeal, Peque-Perez

argues that the district court erred in assigning a criminal

history point for his prior conviction for possession of an open

bottle in a vehicle.   Peque-Perez contends that, had his criminal




     *
       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this opinion should not be published and is not precedent except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. 03-41141
                                 -2-

history score been correctly determined, he would have been in

Criminal History Category V, rather than in Category VI.

       Because the issue was not raised in the district court,

this court’s review is for plain error only.     See United States

v. Leonard, 157 F.3d 343, 345 (5th Cir. 1998); FED. R. CRIM. P.

52(b).    When reviewing for plain error in the sentencing context,

“this court has concluded that if the trial judge, on remand,

could reinstate the same sentence, it will uphold the sentence

imposed despite the trial court’s error.”    Leonard, 157 F.3d at

346.    Peque-Perez concedes that, even if his criminal history

score were corrected, the district court could impose the same

78-month sentence on remand.    Accordingly, Peque-Perez has not

shown plain error.    See id.

       Peque-Perez acknowledges that Leonard continues to be

binding precedent in the sentencing guidelines context, but he

contends that this court should apply the presumed-prejudice

approach adopted in United States v. Reyna, 358 F.3d 344 (5th

Cir.) (en banc), cert. denied, 124 S. Ct. 2390 (2004).     One panel

may not overrule the decisions of another without en banc

consideration or an intervening Supreme Court opinion.     See Hogue

v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997).    The en banc

decision in Reyna did not extend the presumption of prejudice to

errors that result in the application of an incorrect guideline

range.    See Reyna, 358 F.3d at 353.
                           No. 03-41141
                                -3-

     For the first time on appeal, Peque-Perez also argues that

the sentencing provisions of 8 U.S.C. § 1326(b)(1) & (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Peque-Perez acknowledges that his argument is foreclosed

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

he seeks to preserve the issue for Supreme Court 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).

     AFFIRMED.
