                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 25, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-21260
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MARTIN ROSTRO-MORALES,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-02-CR-257-ALL
                      --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Martin Rostro-Morales (“Rostro”) appeals his guilty-plea

conviction and sentence for being found in the United States

without permission, following deportation, in violation of

8 U.S.C. § 1326.    Rostro concedes that his appellate arguments

are foreclosed.    He nevertheless raises two issues to preserve

them for possible further review.

     Rostro renews his argument that the district court erred

in determining that his prior state felony conviction for

     *
        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that this opinion should not be published and is not precedent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. 02-21260
                                 -2-

possession of cocaine was a “drug trafficking crime” under

8 U.S.C. § 1101(a)(43)(B) and thus an “aggravated felony”

which warranted an eight-level increase in his base offense

level under U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1326(b)(2).

Rostro’s argument regarding the definitions of “drug trafficking

crime” and “aggravated felony” is foreclosed by United States

v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert.

denied, 123 S. Ct. 1948 (2003).    Accordingly, the district

court did not err in determining that his prior conviction was

an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).

     Rostro also argues, for the first time on appeal, that

8 U.S.C. § 1326(b) is unconstitutional because it treats a prior

conviction for a felony or aggravated felony as a sentencing

factor and not as an element of the offense.    Rostro’s argument

is foreclosed by Almendarez-Torres v. United States, 523 U.S.

224, 235, 239-47 (1998).    The Supreme Court did not overrule

Almendarez-Torres in Apprendi v. New Jersey, 530 U.S. 466, 489-90

(2000).    See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).    Thus, the district court did not err in sentencing Rostro

under 8 U.S.C. § 1326(b).

     The judgment of the district court is AFFIRMED.
