UNITED STATES of America, Plaintiff-Appellee, v. Cesar Leonel PINEDA-RODRIGUEZ, Defendant-Appellant, 153 F. App'x 284

PER CURIAM: Cesar Leonel Pineda-Rodriguez appeals from his guilty-plea conviction for illegal reentry of a deported alien. Pineda-Rodriguez argues that 8 U.S.C. § 1326(

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. Pineda-Rodriguez acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but asserts that the decision has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He seeks to preserve his argument for further review. Apprendi did not overrule Almendarez-Torres.

See Apprendi 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.