                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40475
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

VICTOR GARCIA-VARGAS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-649-ALL
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Victor Garcia-Vargas appeals his conviction and sentence for

attempted illegal reentry.   He 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 the

issue solely to preserve its further review by the Supreme Court.




     *
       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this opinion should not be published and is not precedent except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. 05-40475
                                 -2-

       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).    We therefore 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).

       AFFIRMED.
