IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21176 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFONSO GARCIA-PEREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-169-ALL -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Alfonso Garcia-Perez appeals his guilty plea conviction and

sentence for being found in the United States after deportation

in violation of

. Garcia argues that the

sentencing provisions in

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

unconstitutional on their face and as applied in his case. He

contends that the unconstitutional portions of

should be severed from the statute. He asks us to vacate his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21176 -2-

conviction and sentence, reform the judgment to reflect a

conviction only under

(a), and remand his case for

resentencing under that provision. Alternatively, he asks us to

simply vacate his sentence and remand his case for resentencing

under

(a).

Garcia acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but he

asserts that the decision has been called into doubt by Apprendi

v. New Jersey,

(2000). He seeks to preserve

his argument for further review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Dabeit,

(internal quotation marks and citation omitted). Accordingly,

the judgment of the district court is AFFIRMED.