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. 03-40821 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE ARMANDO ROMERO-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-23-1 --------------------

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

PER CURIAM:*

Jorge Armando Romero-Martinez appeals his illegal reentry

conviction. Romero 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,

. This court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40821 -2-

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.