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. 05-40008 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ESCOBAR-REYES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1266-ALL --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Escobar-Reyes appeals from his guilty-plea conviction

for illegal reentry of a deported alien. Escobar-Reyes argues

that

(b) is unconstitutional on its face and as

applied in his case because it does not require the fact of a

prior felony or aggravated felony conviction to be charged in the

indictment and proved beyond a reasonable doubt. Escobar-Reyes

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States,

(1998), but asserts that the

decision has been cast into doubt by Apprendi v. New Jersey, 530

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40008 -2-

U.S. 466, 490 (2000). He seeks to preserve his argument for

further review. Apprendi did not overrule Almendarez-Torres.

See Apprendi, 530 U.S. at 489-90; 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).

AFFIRMED.