
    UNITED STATES of America, Plaintiff-Appellee, v. Eliseo DUARTE-MARTINEZ, Defendant-Appellant.
    No. 03-40498.
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Oct. 22, 2003.
    James Lee Turner, Assistant US Attorney, Jeffery Alan Babcock, US Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Roland E. Dahlin, II, Federal Public Defender, Jeffrey L. Wilde and Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
   PER CURIAM.

Eliseo Duarte-Martinez (Duarte) appeals his conviction and the 41-month sentence imposed following his plea of guilty to knowingly and unlawfully being present in the United States without authorization after conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). Duarte argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

Duarte acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he 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 AlmendarezTorres. 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). The judgment of the district court is AFFIRMED.

Given the above disposition, we do not decide whether Duarte’s appeal is barred by the waiver provision of his plea agreement.

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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     