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. 03-40437 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE JESUS RODRIGUEZ-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-565-ALL --------------------

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

PER CURIAM:*

Jose Jesus Rodriguez-Hernandez pleaded guilty to illegal

reentry following deportation after conviction for a felony

other than an aggravated felony in violation of

.

The district court sentenced Rodriguez-Hernandez to 18 months of

imprisonment and three years of supervised release.

Rodriguez-Hernandez argues that

(b) is

unconstitutional. In Almendarez-Torres v. United States,

(1998), the Supreme Court held that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40437 -2-

enhanced penalties in

(b) are sentencing

provisions, not elements of separate offenses. Rodriguez-

Hernandez concedes that his argument is foreclosed by

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

into doubt by Apprendi v. New Jersey,

(2000).

He seeks to preserve his argument 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). This issue is without merit.

Rodriguez-Hernandez also argues that there is a conflict

between the written and oral judgments. The written judgment

contains a condition of supervised release prohibiting the

possession of a dangerous weapon; the oral pronouncement of

sentence did not mention this provision. 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.