                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 20, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-41548
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RUBEN LEONIDES-JAIMES,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. B-02-CR-182-ALL
                        --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Ruben Leonides-Jaimes 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.   For the first time on appeal, Leonides-Jaimes argues

that the district court erred by enhancing his base offense level

sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(vii), based

on a determination that his prior convictions for conspiring to

transport and transporting aliens within the United States were

     *
        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that this opinion should not be published and is not precedent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. 02-41548
                                 -2-

alien smuggling offenses.   In United States v. Solis-Campozano,

312 F.3d 164, 167-68 (5th Cir. 2002), cert. denied, 123 S. Ct.

1811 (2003), this court held that the term “alien smuggling

offense,” as used in U.S.S.G. § 2L1.2(b)(1)(A) includes the

offense of transporting aliens within the United States.

Accordingly, the district court did not err in sentencing

Leonides-Jaimes under that guideline.

     Leonides-Jaimes 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 an element of an offense under 8 U.S.C.

§ 1326.   Leonides-Jaimes’s argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 239-47 (1998).     Apprendi

v. New Jersey, 530 U.S. 466, 489-90 (2000), did not overrule that

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

Cir. 2000).   The district court did not err in sentencing

Leonides-Jaimes under 8 U.S.C. § 1326(b).

     Leonides-Jaimes concedes that both of his appellate

arguments are foreclosed.   He raises the issues solely to

preserve them for possible further review.   Because Leonides-

Jaimes’s arguments are foreclosed, the district court has filed a

motion requesting summary affirmance of the district court’s

judgment.   The motion is GRANTED.   The judgment of the district

court is AFFIRMED.
