IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21239 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO ESTRADA-AGUIRRE, also known as Rogelio Solorzano-Joaquin,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-499-ALL -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Rogelio Estrada-Aguirre ("Estrada") appeals the 57-month

sentence imposed following his guilty plea to a charge of being

found in the United States after having been deported following

an aggravated felony in violation of

. Estrada

argues that the sentencing provision of

(b)(2) is

unconstitutional in light of the Supreme Court's holding in

Apprendi v. New Jersey,

(2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21239 -2-

Estrada concedes that his argument is foreclosed by the

Supreme Court's decision in Almendarez-Torres v. United States,

(1998), but he seeks to preserve the issue for

Supreme Court review. Apprendi did not overrule

Almendarez-Torres. See Apprendi,

; United

States v. Dabeit,

(5th Cir. 2000), cert.

denied,

(2001). This court must follow the

precedent set in Almendarez-Torres "unless and until the Supreme

Court itself determines to overrule it." Dabeit,

(internal quotation and citation omitted).

AFFIRMED.