                                                       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. 05-40223
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERTO ARTURO-CORDOBA, also known as
Roberto Cordova,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1415-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Roberto Arturo-Cordoba appeals his sentence following his

guilty-plea conviction of being a deported alien who reentered

the United States illegally.   Cordoba argues that 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), requiring that his sentence be vacated and

the matter remanded for resentencing.   He recognizes that under

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

     *
       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this opinion should not be published and is not precedent except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. 05-40223
                                -2-

on this issue is foreclosed, but he states that he wishes to

raise the issue to preserve it for further possible review by the

Supreme Court.

     In Almendarez-Torres, 523 U.S. at 235, the Supreme Court

held that the enhanced penalties in 8 U.S.C. § 1326(b) are

sentencing provisions, not elements of separate offenses.    The

Court further held that the sentencing provisions are

constitutional.   See id. at 239-47.   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).    We

must follow the precedent set in Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.

2003)(quotation marks and citation omitted).   The judgment of the

district court is AFFIRMED.
