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. 03-40128 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS DELGADO-GENCHIS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1277-ALL --------------------

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

PER CURIAM:*

Jesus Delgado-Genchis (“Delgado”) pleaded guilty to

illegal reentry following deportation after a conviction for an

aggravated felony in violation of

(a) and (b)(2).

The district court sentenced Delgado to 15 months’ imprisonment

and three years’ supervised release.

Delgado argues, for the first time on appeal, that the

sentencing provisions of

(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersey,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40128 -2-

(2000). He concedes that this argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but

he seeks to preserve the issue for Supreme Court review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000). This court must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit,

.

Delgado also argues that a conflict exists between the

district court’s oral pronouncement of sentence and the written

judgment because the written judgment contains a condition of

supervised release prohibiting the possession of a dangerous

weapon, but at the sentencing hearing, the court did not mention

this prohibition. For the reasons outlined in United States v.

Torres-Aguilar,

(5th Cir. 2003), we conclude

that the district court’s omission of the dangerous-weapon

prohibition during the oral pronouncement of sentence did not

create a conflict with the sentence set forth in the judgment.

AFFIRMED.