United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 10, 2003

Charles R. Fulbruge III Clerk No. 03-40816 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS RESENDEZ-HERNANDEZ, also known as Ricardo Flores,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-131-1 --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Juan Carlos Resendez-Hernandez appeals his illegal reentry

conviction. Resendez 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,

(1998), and he raises it solely

to preserve its further review by the Supreme Court. Apprendi

did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40816 -2-

489-90. 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.