                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS       August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                             No. 03-41534
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

OSCAR OLIVA-BANEGAS,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. L-03-CR-880-1
                      --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Oscar Oliva-Banegas (Oliva) pleaded guilty to one count of

illegal reentry into the United States, and the district court

sentenced him to 30 months in prison and a three-year term of

supervised release.    Oliva contends that the district court erred

by characterizing his state felony conviction for simple

possession of a controlled substance as an “aggravated felony”

for purposes of U.S.S.G. § 2L1.2(b)(1)(C).     This issue, however,

is foreclosed by our precedent.    See United States v. Caicedo-

Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538

     *
       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this opinion should not be published and is not precedent except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. 03-41534
                               -2-

U.S. 1021 (2003); United States v. Hinojosa-Lopez, 130 F.3d 691,

693-94 (5th Cir. 1997).

     Oliva contends that 8 U.S.C. § 1326(b) is unconstitutional

because it does not require the fact of a prior felony or

aggravated felony conviction to be charged in the indictment and

proved beyond a reasonable doubt.   This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998).    See

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

     The district court’s judgment is

     AFFIRMED.
