                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 22, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 02-41521
                        Conference Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ANDRES REYES-JAIMEZ,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-02-CR-278-1
                      --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Andres Reyes-Jaimez (Reyes) appeals the 70-month sentence

imposed following his guilty plea to illegal reentry following

deportation, in violation of 8 U.S.C. § 1326(a) and (b).

     Reyes argues that the sentence-enhancing provisions

contained in 8 U.S.C. § 1326(b) are unconstitutional on their

face and as applied in light of the Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000).   Alternatively,

Reyes argues that because his indictment did not specifically


     *
        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that this opinion should not be published and is not precedent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. 02-41521
                                 -2-

allege that he had a prior aggravated felony conviction, he was

only convicted of illegal reentry, in violation of 8 U.S.C.

§ 1326(a).    He contends that his sentence, which exceeds that

authorized by 8 U.S.C. § 1326(a), is therefore illegal.      Reyes’

arguments are raised for the first time on appeal.

     Reyes concedes that his arguments are foreclosed by

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

seeks to preserve the arguments 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).    This court must follow the precedent set in

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, the district court’s judgment is AFFIRMED.
