                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS      August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-21206
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ISAAC REYES-HERNANDEZ,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-03-CR-159-ALL
                      --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Jose Isaac Reyes-Hernandez (Reyes) appeals his conviction

and the 71-month sentence imposed following his plea of guilty to

illegal reentry after deportation following a conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).

For the first time on appeal, Reyes argues that the felony and

aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2)

are unconstitutional.




     *
        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that this opinion should not be published and is not precedent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. 03-21206
                                 -2-

       Reyes acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but

he asserts that the decision has been cast into doubt by Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000).    He seeks to preserve

his argument 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 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 judgment of the district

court is AFFIRMED.
