                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 20, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 03-10880
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ANDRES GONZALEZ-CLEMENTE,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:03-CR-28-P-ALL
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Andres Gonzalez-Clemente appeals his conviction and sentence

for illegal reentry of an aggravated felon after deportation, in

violation of 8 U.S.C. § 1326.    His argument that the district

court erred in determining his criminal history category is

without merit.    The court’s finding that Gonzalez had been

convicted of the assault charge in ¶ 40 of the presentence report

is supported by the record and is not clearly erroneous.         See



     *
        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that this opinion should not be published and is not precedent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. 03-10880
                                -2-

United States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2002);

United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996).

     Equally unavailing is Gonzalez’s argument that

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

been overruled or cast into doubt by Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), an argument he admits is foreclosed.

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).

     AFFIRMED.
