                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    June 22, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 04-41258
                        Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FRANCISCO JAVIER HERNANDEZ-NEGRETE,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-150-ALL
                      --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Francisco Javier Hernandez-Negrete (“Hernandez”) appeals

following his guilty-plea conviction and 57-month sentence of

imprisonment on one count of being found in the United States,

without permission, following removal after having been convicted

of an aggravated felony.

     For the first time on appeal, Hernandez argues that the

sentencing provisions in 8 U.S.C. § 1326(b) are unconstitutional

because they do not require the fact of a prior felony or


     *
       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this opinion should not be published and is not precedent except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. 04-41258
                                 -2-

aggravated felony conviction to be charged in the indictment and

proved beyond a reasonable doubt.    He contends that his sentence

is invalid, and he argues that it should not exceed the two-year

maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a).

       Hernandez acknowledges that his argument is foreclosed by

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

       AFFIRMED.
