                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 22, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-40414
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MARTIN MARTINEZ-ARRATIA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-660-1
                       --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Martin Martinez-Arratia (Martinez) appeals his guilty-plea

conviction and sentence for being an alien unlawfully found in

the United States after deportation.    He argues for the first

time on appeal that 8 U.S.C. § 1326(b) is unconstitutional

because it does not require the prior aggravated felony

conviction used to increase his sentence to be proven as an

element of the offense.    He contends that his conviction should

be reformed to the lesser included offense in 8 U.S.C. § 1326(a)

     *
        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that this opinion should not be published and is not precedent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. 03-40414
                                -2-

and that he should be resentenced to no more than two years of

imprisonment.

     Martinez 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 in light of the decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000).

     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).   Martinez’s argument is foreclosed.   The

judgment of the district court is AFFIRMED.
