                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 19, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-41582
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TOMAS NMI SANCHEZ-MEDINA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-298-1
                      --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Tomas Nmi Sanchez-Medina appeals his 50-month sentence

following his guilty-plea conviction for being an alien

unlawfully found in the United States following deportation after

having been previously convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326.   Sanchez asserts that the district

court plainly erred in assigning him three criminal history

points for his prior conviction for evading arrest.     He further

maintains that 8 U.S.C. § 1326(b)(1) and (b)(2) are

     *
        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that this opinion should not be published and is not precedent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. 02-41582
                                  -2-

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).

     Under U.S.S.G. § 4A1.2(c) and United States v. Moore, 997

F.2d 30, 33 (5th Cir. 1993), Sanchez’s 2000 evading arrest

conviction arguably should not have been counted for purposes of

his criminal history score.     However, because the district court

could, on remand, impose the same 50-month sentence, Sanchez

fails to demonstrate that his substantial rights were affected by

the district court’s error in calculating his criminal history

category.    United States v. Wheeler, 322 F.3d 823, 828 (5th Cir.

2003); United States v. Leonard, 157 F.3d 343, 346 (5th Cir.

1998).    Consequently, Sanchez fails to satisfy the plain error

standard of review.    Id.

     Although Sanchez urges us to adopt the reasoning of the

Third Circuit as set forth in United States v. Knight, 266 F.3d

203 (3d Cir. 2001), it is the firm rule of this circuit that one

panel may not overrule the decisions of another without en banc

consideration or an intervening Supreme Court opinion.     See Hogue

v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997).     Neither condition

is present in this case.     Thus, Sanchez is not entitled to any

relief, as set forth in Leonard and its progeny.

     Sanchez concedes that his challenge to the constitutionality

of 8 U.S.C. § 1326(b)(1) and (b)(2) is foreclosed by

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

seeks to preserve the issue for Supreme Court review.     Apprendi
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                                -3-

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 the precedent set in

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 district court’s judgment is AFFIRMED.
