                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 18, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-40620
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARCOS TULIO MADRID,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-1654-ALL
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Marcos Tulio Madrid appeals his conviction and sentence

for illegal reentry.   He argues that the district court plainly

erred by characterizing his state felony conviction for simple

possession of crack as an “aggravated felony” for purposes of

U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(B), when

that same offense was punishable only as a misdemeanor under




     *
        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that this opinion should not be published and is not precedent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. 03-40620
                                    -2-

federal law.       This issue, however, is foreclosed by United States

v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), and, therefore,

Madrid has not demonstrated plain error.

       Madrid concedes that the issue whether the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1)&(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 it solely to preserve its

further review by the Supreme Court.       Apprendi did not overrule

Almendarez-Torres.       See Apprendi, 530 U.S. at 489-90.   This court

must therefore follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000) (internal quotation and citation omitted).

       AFFIRMED.
