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. 05-40475 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR GARCIA-VARGAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-649-ALL --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Victor Garcia-Vargas appeals his conviction and sentence for

attempted illegal reentry. He concedes that the issue whether

the “felony” and “aggravated felony” provisions of

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

New Jersey,

(2000), is foreclosed by Almendarez-

Torres v. United States,

(1998), and he raises the

issue solely to preserve its further review by the Supreme Court.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40475 -2-

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000). We therefore must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” Dabeit,

(internal quotation marks and

citation omitted).

AFFIRMED.