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. 05-40232 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENITO AVILA-SALDANA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CR-511-ALL --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Benito Avila-Saldana appeals his guilty-plea conviction of

illegal reentry into the United States after having been

deported. Avila-Saldana argues that Almendarez-Torres v. United

States,

(1998), has been undercut by later Supreme

Court opinions, particularly Apprendi v. New Jersey,

(2000). Thus, he argues that the “felony” and “aggravated

felony” provisions of

(b) are unconstitutional.

Avila-Saldana recognizes that relief is foreclosed but states

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40232 -2-

that he wishes to raise the issue for possible further review in

the Supreme Court.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

. We must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” United States v. Mancia-Perez,

(5th Cir. 2003) (quotation marks and citation

omitted). Therefore, Avila-Saldana’s argument fails. See

The judgment of the district court is AFFIRMED.