United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 18, 2004 Charles R. Fulbruge III Clerk No. 02-41688 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ENCARNACION LUJANO-PEREZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-399-ALL -------------------- Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:* Encarnacion Lujano-Perez appeals the 70-month sentence imposed following entry of his guilty plea to a charge of being found in the United States after deportation in violation of 8 U.S.C. § 1326. Lujano-Perez argues that the sentencing provisions of 8 U.S.C. § 1326(b) are unconstitutional.

Lujano-Perez acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but he asserts that Almendarez-Torres has been cast into doubt by * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41688 -2- Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his argument for further review.

Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted). The judgment of the district court is AFFIRMED.