IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20250 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN AGUILAR-CASTILLO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-692-1 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Aguilar-Castillo appeals his sentence following his

guilty-plea conviction for being present in the United States

after having previously been deported or removed following a

felony conviction. Aguilar-Castillo argues for the first time on

appeal that

(b)(1) is unconstitutional because it

permitted the sentencing judge to find, under a preponderance of

the evidence standard, a fact which increased the statutory

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20250 -2-

maximum sentence to which he otherwise would have been exposed.

He thus contends that his sentence is invalid and argues that it

should not exceed the two-year maximum term of imprisonment

prescribed in

(a).

In Almendarez-Torres v. United States,

(1998), the Supreme Court held that the enhanced penalties in

(b) are sentencing provisions, not elements of

separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause.

.

Aguilar-Castillo acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been cast

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).

The judgment of the district court is AFFIRMED.