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. 02-41697 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE EFRAIN GARCIA-LUNA, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-340-ALL --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Efrain Garcia-Luna appeals from his guilty-plea

conviction for being found illegally in the United States

following a previous deportation. Garcia-Luna was sentenced to a

term of imprisonment of 46 months to be followed by a three-year

term of supervised release.

Garcia-Luna argues that the felony and aggravated felony

provisions of

(b)(1), (b)(2) are unconstitutional

in light of Apprendi v. New Jersey,

(2000). He also

argues that his indictment was defective because it did not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41697 -2-

charge his prior aggravated felony conviction as an element of

the offense.

In Almendarez-Torres v. United States,

(1998), the Supreme Court held that the enhanced penalties in

(b) are sentencing provisions, and not elements of

separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause.

.

Garcia-Luna acknowledges that these arguments are foreclosed

by Almendarez-Torres, but he asserts that the decision has been

cast into doubt by Apprendi,

. He seeks to

preserve these arguments 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). Accordingly, these arguments are foreclosed.

Garcia-Luna also argues that the special written condition

of supervised release prohibiting him from possessing a

“dangerous weapon” must be stricken from the judgment of

conviction because that condition was not orally pronounced at

sentencing. His argument is foreclosed by this court’s opinion

in United States v. Torres-Aguilar,

(5th Cir. 2003).

AFFIRMED.