Cirilo Alvarado-Delgado (“Alvarado”) appeals from his conviction and sentence for unlawful re-entry following deportation subsequent to a conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2).
Alvarado argues that his conviction amounts to plain error because he did not have an aggravated-felony conviction necessary to establish a violation of 8 U.S.C. § 1326(b)(2). Alvarado’s pre-sentence report did not include any conviction that qualified as an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2). He maintains that he was subject only to the provisions of 8 U.S.C. § 1326(b)(1). As Alvarado concedes, his sentence does not exceed the maximum under that clause, so his conviction and sentence for violating 8 U.S.C. § 1326(b)(2) did not amount to plain error because it did not affect his substantial rights. See United States v. Ramirez-Velasquez, 322 F.3d 868, 879 (5th Cir.2003), cert. denied, - U.S. -, — S.Ct. -, — L.Ed.2d -, 2003 WL 21314203 (2003). The aggravated-felony provision of 8 U.S.C. § 1326(b)(2) is merely a penalty provision and does not define a separate crime. Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
Alvarado contends that the district court erred in applying a 16-level enhancement to his sentence based on his prior battery conviction. As Alvarado concedes, his battery conviction warrants a 16-level enhancement under the literal terms of U.S.S.G. § 2L1.2(b)(l)(A)(ii). Alvarado has not established that “clear contrary legislative intention” required the district court to read the amended guideline in a manner that contradicted its “plain language.” See United States v. Scrimgeour, 636 F.2d 1019, 1022-23 (5th Cir.1981).
Furthermore, Alvarado maintains that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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).
AFFIRMED.