
    UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier ACIAIN-PORRAS, Defendant-Appellant.
    No. 03-41133.
    Conference Calendar
    United States Court of Appeals, Fifth Circuit.
    April 21, 2004.
    James Lee Turner, Assistant US Attorney, Jeffery Alan Babcock, US Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Roland E. Dahlin, II, Federal Public Defender, H. Michael Sokolow, Darrell L. Bryan, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before JOLLY, JONES, and SMITH, Circuit Judges.
   PER CURIAM.

Francisco Javier Aeiain-Porras appeals from his guilty-plea conviction for being illegally present in the United States following a previous deportation. For the first time on appeal, Aeiain-Porras 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. He thus contends that his sentence is invalid and argues that it should not exceed the two-year maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a).

Aeiain-Porras 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; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). This court must follow Mmendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted).

Accordingly, as Aciain-Porras’s sole argument on appeal is foreclosed, 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     