United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 9, 2005

Charles R. Fulbruge III Clerk No. 04-40308 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFONSO ZAMORA-ANAYA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:03-CR-920-ALL --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Alfonso Zamora-Anaya appeals the sentence imposed following

his guilty plea to illegal reentry into the United States

following deportation. Zamora was sentenced to a term of

imprisonment of 46 months to be followed by a three-year term of

supervised release.

Zamora argues that in light of Apprendi v. New Jersey,

(2000), it appears that Almendarez-Torres v. United

States,

(1998), was incorrectly decided and that,

therefore, the sentencing provisions of

(b) are

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40308 -2-

unconstitutional. He contends that the unconstitutional portions

of the statute should be severed and that he should be

resentenced to no more than two years of imprisonment for the

lesser included offense provided under

(a).

Zamora recognizes that his argument is foreclosed by the existing

precedent of the Supreme Court and this court; however, he wishes

to preserve the issue for possible Supreme Court review.

Almendarez-Torres held that the enhanced penalties contained

in

(b) were sentencing factors and not elements of

the offense.

. Apprendi did not overrule

Almendarez-Torres. See Apprendi,

; United

States v. Dabeit,

(5th Cir. 2000). This court

must follow the precedent set in Almendarez-Torres unless the

Supreme Court overrules it. Dabeit,

. Zamora’s

challenge to the constitutionality of

(b) is

without merit.

AFFIRMED.