                                                       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. 05-40111
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE JUAN DELGADILLO-BERNAL,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1632-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Juan Delgadillo-Bernal (“Delgadillo”) appeals the

sentence imposed following entry of his guilty plea to a charge

of being found illegally in the United States after he had been

removed subsequent to his conviction for a felony.     The district

court sentenced Delgadillo to 18 months of imprisonment and three

years of supervised release.

     Delgadillo’s sole issue on appeal is a challenge to the

validity of Almendarez-Torres v. United States, 523 U.S. 224


     *
       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this opinion should not be published and is not precedent except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. 05-40111
                                 -2-

(1998), and the use of his prior conviction to increase his

sentence.   Delgadillo asserts for the first time on appeal that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) are unconstitutional because they are treated as

sentencing factors rather than as elements of the offense.

Delgadillo concedes that his argument is foreclosed by circuit

precedent and admits that he raises the argument merely to

preserve it for Supreme Court review.

     As Delgadillo concedes, his arguments are foreclosed.     See

United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th

Cir.), cert. denied, 126 S. Ct. 253 (2005); United States v.

Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003).   The Supreme

Court in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), did

not overrule Almendarez-Torres, and we must follow Almendarez-

Torres “unless and until the Supreme Court itself determines to

overrule it.”    Mancia-Perez, 331 F.3d at 470 (internal quotation

marks and citation omitted).

     AFFIRMED.
