United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 22, 2003

Charles R. Fulbruge III Clerk No. 03-40183 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR GUILIAN ZELAYA-ULLOA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-02-CR-531-1 --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Oscar Guilian Zelaya-Ulloa appeals his conviction and

sentence for illegal reentry. We have jurisdiction over

his appeal. See United States v. Lister,

(5th Cir. 1995).

Zelaya concedes that the issue whether the “felony” and

“aggravated felony” provisions of

(b)(1)&(2) are

unconstitutional in light of Apprendi v. New Jersey,

(2000) is foreclosed by Almendarez-Torres v. United States,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40183 -2-

(1998), and he raises it solely to preserve its

further review by the Supreme Court. Apprendi did not overrule

Almendarez-Torres. See Apprendi,

. This court

must therefore follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” See United States v. Dabeit,

(5th Cir.

2000) (internal quotation and citation omitted).

AFFIRMED.