IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20408 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ACOSTA-MONTES, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-855-1 -------------------- February 19, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Antonio Acosta-Montes pleaded guilty to illegal reentry

after deportation and was sentenced to 24 months’ imprisonment

and three years’ supervised release. He challenges the

calculation of his criminal history score as 13, placing him in

criminal history category VI. Although he made no objection in

the district court, he argues that the district court committed

plain error by adding one criminal history point to his criminal

history score for his prior conviction for criminal mischief,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20408 -2-

citing to this court’s recent decision in United States v. Reyes-

Maya,

(5th Cir. 2002).

A close review of the presentence report shows that it is

unnecessary for this court to resolve this issue. Acosta-Montes

had a criminal history score of 13 points, placing him in

category VI. He had five prior sentences to which the probation

officer assigned one criminal history point under U.S.S.G.

§ 4A1.1(c), four theft convictions, and the criminal mischief

conviction in question. Those convictions, along with several

other more serious convictions which were counted under U.S.S.G.

§ 4A1.1(b), gave Acosta-Montes a criminal history subtotal of 11

points. However, as the probation officer correctly noted,

although Acosta-Montes had five criminal history points under

U.S.S.G. § 4A1.1(c), only four were scoreable, because U.S.S.G.

§ 4A1.1(c) allows a total of four points to be counted.

Therefore, his criminal history subtotal was reduced from 11 to

10 points. Even if the criminal mischief conviction had not

been assigned a point, Acosta-Montes still had four points

countable under U.S.S.G. § 4A1.1(c) for the four theft

convictions which he does not challenge. Taking away a point for

the criminal mischief conviction would not reduce his criminal

history score or category.

Acosta-Montes also argues for the first time on appeal that

the felony and aggravated felony provisions of

(b)(1) and (2) are unconstitutional in light of Apprendi v. No. 02-20408 -3-

New Jersey,

(2000). He concedes that this argument

is foreclosed by Almendarez-Torres v. United States,

(1998), but nevertheless seeks to preserve the issue for Supreme

Court review. Apprendi did not overrule Almendarez-Torres. See

Apprendi,

; see also United States v. Dabeit,

(5th Cir. 2000)(noting that the Supreme Court in

Apprendi expressly declined to overrule Almendarez-Torres). This

court must therefore follow the precedent set in Almendarez-

Torres “unless and until the Supreme Court itself determines to

overrule it.” Dabeit,

(internal quotation and

citation omitted).

AFFIRMED.