
    UNITED STATES of America, Plaintiff-Appellee, v. Israel PINEDA-CORTES, Defendant-Appellant.
    No. 02-41705.
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Dec. 5, 2003.
    James Lee Turner, Assistant US Attorney, David Hill Peck, US Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Roland E. Dahlin, II, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Raquel Kathy Wilson, Assistant Federal Public Defender, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
   PER CURIAM.

Israel Pineda-Cortes appeals his guilty-plea conviction and sentence for illegal entry after deportation. Pineda argues that a driving-while-intoxicated (DWI) sentence should not have been assigned two criminal-history points because the sentence was imposed more than 10 years prior to the commencement of the instant offense. He also argues that an evading-arrest sentence should not have been assigned any criminal-history points because evading arrest is similar to the offense of resisting arrest.

Pineda’s DWI sentence should not have been considered in calculating his criminal-history score because it occurred more than 10 years before the instant offense. U.S.S.G. § 4A1.1; see also U.S.S.G. § 4A1.2(e)(2) and (3). Under U.S.S.G. § 4A1.2(c) and United States v. Moore, 997 F.2d 30, 33 (5th Cir.1993), Pineda’s evading-arrest sentence arguably also should not have been counted for purposes of his criminal-history score. However, because the district court could, on remand, impose the same 21-month sentence, Pineda fails to demonstrate that his substantial rights were affected by the district court’s error in calculating his criminal-history category. See United States v. Leonard, 157 F.3d 343, 346 (5th Cir.1998). Consequently, despite Pineda’s argument to the contrary, he fails to satisfy the plain-error standard of review. Id.

Pineda contends that the sentence-enhancing provisions contained in 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional on their face and as applied in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Pineda concedes that his challenge to the constitutionality of 8 U.S.C. § 1326(b)(1) and (b)(2) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review. Apprendi did not overrule Almendarez-Torres. See Apprendi 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). This court must follow the precedent set in 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). The district court’s judgment is 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.
     