                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         August 20, 2003
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 03-40148
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

SIXTO RODRIGUEZ RODRIGUEZ,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-468-1
                      --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Sixto Rodriguez Rodriguez appeals his guilty plea conviction

for illegal reentry into the United States following deportation.

He argues that 8 U.S.C. 1326(b), the statute under which he was

convicted and sentenced, is unconstitutional on its face and as

applied in his case in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).    However, Rodriguez concedes that his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224



     *
        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that this opinion should not be published and is not precedent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. 03-40148
                                 -2-

(1998), but wishes to preserve the issue for further review by

the Supreme Court.

     Apprendi did not overrule Almendarez-Torres.   See Apprendi,

530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000).   This court therefore must follow

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.”   Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted).   Rodriguez’s argument is without

merit.

     AFFIRMED.
