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. 03-40817 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS MERAZ-SANCHEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-167-1 --------------------

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

PER CURIAM:*

Luis Meraz-Sanchez appeals from his guilty-plea conviction

for being found in the United States following a previous

deportation. Meraz-Sanchez argues for the first time on appeal

that

(b)(1) is unconstitutional because it

permitted the sentencing judge to find, under a preponderance of

the evidence standard, a fact that increased the statutory

maximum sentence to which he otherwise would have been exposed.

He thus contends that his sentence is invalid and argues that it

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40817 -2-

should not exceed the two-year maximum term of imprisonment

prescribed in

(a).

In Almendarez-Torres v. United States,

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

(b) are sentencing provisions, not elements of

separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause.

.

Meraz-Sanchez acknowledges that his argument is foreclosed by

Almendarez-Torres, but 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). Accordingly, Meraz-Sanchez’s first argument

is foreclosed.

Meraz-Sanchez also asserts 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 No. 03-40817 -3-

Cir. 2003), which was issued after Meraz-Sanchez submitted the

instant appeal brief.

Accordingly, the district court’s judgment is AFFIRMED.