United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 22, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 03-40462
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

WENCESLAO MENDOZA-CHAVIRA,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-677-1
                      --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Wenceslao Mendoza-Chavira (“Mendoza”) appeals his conviction

and the 41-month sentence imposed following his plea of guilty to

being found in the United States after deportation, in violation

of 8 U.S.C. § 1326.   Mendoza argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2)

are unconstitutional.

     Mendoza acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 

, 235 (1998), but

he asserts that the decision has been cast into doubt by Apprendi


     *
        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that this opinion should not be published and is not precedent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. 03-40462
                                 -2-

v. New Jersey, 

, 490 (2000).    He seeks to preserve

his argument for further review.

       Apprendi did not overrule Almendarez-Torres.   See 

; United States v. Dabeit, 

, 984

(5th Cir. 2000).    This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    

(internal quotation marks and

citation omitted).    The judgment of the district court is

AFFIRMED.

       Given the above disposition, we do not decide whether

Mendoza’s appeal is barred by the waiver provision of his plea

agreement.

       AFFIRMED.