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. 03-40434 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERARDO RANGEL-ORDUNA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1513-ALL --------------------

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

PER CURIAM:*

Gerardo Rangel-Orduna (“Rangel”) pleaded guilty to being

found in the United States after deportation following his

conviction for an aggravated felony, in violation of

(a) and (b)(2). The district court sentenced Rangel to 37

months’ imprisonment and three years’ supervised release.

Rangel 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40434 -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,

(internal

quotation and citation omitted).

Rangel also argues that a conflict exists between the

district court’s oral pronouncement of sentence and the written

judgment; the written judgment contains a condition of supervised

release prohibiting the possession of a dangerous weapon, which

the court did not mention at sentencing. For the reasons set

forth in United States v. Torres-Aguilar,

(5th Cir. 2003), we conclude that the district court’s omission

of the dangerous-weapon prohibition during its oral pronouncement

of sentence did not create a conflict with the sentence set forth

in the written judgment.

AFFIRMED.