IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20086 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS CUERO-VALENCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-589-ALL -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Carlos Cuero-Valencia appeals the sentence imposed following

his guilty plea conviction of being found in the United States

after deportation in violation of

. Cuero argues

that the “felony” and “aggravated felony” provisions of

(b)(1) and (2) are unconstitutional.

Cuero acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but

asserts that the decision has been cast into doubt by Apprendi v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20086 -2-

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). 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.