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. 03-40828 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN ALCARAZ-RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1586-ALL --------------------

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

PER CURIAM:*

Jaime Alfredo Alcaraz-Rodriguez pleaded guilty to one count

of illegal reentry after deportation in violation of

. The district court sentenced Alcaraz-Rodriguez to

85 months of imprisonment and three years of supervised release.

Alcaraz-Rodriguez argues that

(b) is

unconstitutional. In Almendarez-Torres v. United States,

(1998), the Supreme Court held that the

enhanced penalties in

(b) are sentencing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40828 -2-

provisions, not elements of separate offenses. Alcaraz-Rodriguez

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.

Alcaraz-Rodriguez 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.