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. 03-40498 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELISEO DUARTE-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-750-1 --------------------

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

PER CURIAM:*

Eliseo Duarte-Martinez (Duarte) appeals his conviction and

the 41-month sentence imposed following his plea of guilty to

knowingly and unlawfully being present in the United States

without authorization after conviction for an aggravated felony,

in violation of

(a) and (b). Duarte argues that

the “felony” and “aggravated felony” provisions of

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40498 -2-

Duarte acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but

he 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). 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.

Given the above disposition, we do not decide whether

Duarte’s appeal is barred by the waiver provision of his plea

agreement.

AFFIRMED.