United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 21, 2004

Charles R. Fulbruge III Clerk No. 04-40072 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS FERNANDO DIAZ-SANCHEZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-03-CR-1321-All --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Luis Fernando Diaz-Sanchez (Diaz-Sanchez) appeals his

conviction and sentence for illegal re-entry after deportation, a

violation of

(b)(2) and

and 557.

He argues that the “felony” and “aggravated felony” provisions of

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.

New Jersey,

(2000). Diaz-Sanchez raises an issue

that he concedes is foreclosed, but he seeks to preserve it for

further review.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40072 -2-

This argument is foreclosed by Almendarez-Torres v. United

States,

(1998). We must follow the precedent

in Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” United States v. Dabeit,

(5th Cir. 2000) (internal quotation marks and citation

omitted).

AFFIRMED.