                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 13, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40580
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE SALBADOR LIRA-LOPEZ, also known as Jose Juan
Uscanga-Hernandez,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-38-ALL
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Salbador Lira-Lopez, also known as Jose Juan

Uscanga-Hernandez, appeals from his guilty-plea conviction for

illegal reentry into the United States following deportation

pursuant to an aggravated-felony conviction.   He first argues,

and the Government concedes, that the district court erred in

calculating his criminal history score, which affected his

criminal history category.   Lira-Lopez admits that this error is

reviewed only for plain error because he failed to challenge that

     *
       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this opinion should not be published and is not precedent except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. 04-40580
                                 -2-

calculation in district court.   When reviewing for plain error in

the sentencing context, “this court has concluded that if the

trial judge, on remand, could reinstate the same sentence, it

will uphold the sentence imposed despite the trial court’s

error.”   United States v. Leonard, 157 F.3d 343, 346 (5th Cir.

1998)(citations omitted).   Despite Lira-Lopez’s arguments to the

contrary, Leonard is controlling precedent and may not be

overruled by this panel without en banc consideration or an

intervening Supreme Court opinion.   See Hogue v. Johnson, 131

F.3d 466, 491 (5th Cir. 1997).   Lira-Lopez admits that, even if

his criminal history score were corrected, the district court

could impose the same 46-month sentence on remand.     Accordingly,

Lira-Lopez has not shown plain error.      See id.

     Also for the first time on appeal, Lira-Lopez 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).

     Lira-Lopez acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but

asserts that the decision has been cast into doubt by Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000).      He seeks to preserve his
                           No. 04-40580
                                -3-

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 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.
