                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40174
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BENIGNO POZOS-SANTILLAN,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:03-CR-1463-1
                      --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Benigno Pozos-Santillan appeals his guilty-plea conviction

for illegal reentry into the United States following a prior

deportation in violation of 8 U.S.C. § 1326.   For the first time

on appeal, Pozos-Santillan argues that the sentencing provisions

of 8 U.S.C. § 1326(b) are unconstitutional in light of the

Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466

(2000).




     *
       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this opinion should not be published and is not precedent except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. 04-40174
                                 -2-

     Pozos-Santillan acknowledges that his argument is foreclosed

by the Supreme Court’s decision in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the issue

for Supreme Court 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).   Pozos-Santillan’s

argument is foreclosed.   The judgment of the district court is

AFFIRMED.
