IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40780 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus AMADO PEREZ-AVALOS, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-14-ALL -------------------- December 12, 2002 Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:* Amado Perez-Avalos appeals the 30-month sentence imposed following his guilty plea to a charge of illegal re-entry after having been deported following an aggravated felony conviction in violation of 8 U.S.C. § 1326. Perez-Avalos argues that the sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40780 -2- seeks to preserve the issue for Supreme Court review. Apprendi 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 and citation omitted).

AFFIRMED.