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. 03-40862 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDRES ARMANDO RODRIGUEZ-GARCIA, also known as Armando Sustaita-Saenz,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-103-1 --------------------

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

PER CURIAM:*

Andres Armando Rodriguez-Garcia appeals his guilty-plea

conviction and sentence for being found illegally present in the

United States after deportation. He argues, pursuant to Apprendi

v. New Jersey,

(2000), that the “felony” and

“aggravated felony” provisions of

(b)(1) and

(2) are elements of the offense, not sentence enhancements,

making those provisions unconstitutional. Rodriguez-Garcia

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40862 -2-

concedes that this argument is foreclosed by Almendarez-Torres v.

United States,

(1998), and he raises it for possible

review by the Supreme Court.

This argument is foreclosed by Almendarez-Torres,

. We must follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” United States v. Dabeit,

(5th Cir. 2000)

(internal quotation and citation omitted).

Rodriguez-Garcia 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.

Thus, this issue is also foreclosed.

AFFIRMED.