IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40206 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HUGO MARTINEZ-MONTES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-434-1 -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Hugo Martinez-Montes (Martinez) appeals the 46-month

sentence imposed following his guilty plea to illegal reentry

following deportation after his conviction for an aggravated

felony, in violation of

(a) and (b)(2). Martinez

argues, for the first time on appeal, that the sentence-enhancing

provisions contained in

(b)(1) and (b)(2) are

unconstitutional on their face and as applied in light of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40206 -2-

Supreme Court’s decision in Apprendi v. New Jersey,

(2000).

Martinez concedes that his argument is foreclosed by

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 marks and citation omitted).

Accordingly, the district court’s judgment is AFFIRMED.