               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-50583
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS BANDA-VASQUEZ, also known as Jose Banda,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. SA-01-CR-649-ALL
                       --------------------
                          March 14, 2003

Before REAVLEY, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

     Jose Luis Banda-Vasquez (Banda) appeals the sentence

following his guilty-plea conviction for being found in the

United States after a prior deportation, in violation of 8 U.S.C.

§ 1326(a) and (b).   He argues that his prior conviction for

transporting aliens within the United States is not an alien

smuggling offense under U.S.S.G. § 2L1.2.   This argument is




     *
        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that this opinion should not be published and is not precedent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. 02-50583
                                -2-

foreclosed by our decision in United States v. Solis-Campozano,

312 F.3d 164, 167 (5th Cir. 2002).

     Next, Banda argues that the district court erred in going

beyond the statute of conviction and the charging instrument to

determine that a 16-level increase in his offense level was

warranted under U.S.S.G. § 2L1.2(b)(1)(A)(vii).   He contends that

the district court must employ a categorical approach to

determine whether his prior alien transporting offense was

committed for profit.

     Banda did not make this argument below, and concedes that

our review is for plain error.   Assuming without deciding that

the district court and the probation officer were obliged under

our precedents to take a categorical approach, and plainly erred

in doing otherwise, we decline to correct such an error because

it did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings.   See United States v.

McDowell, 109 F.3d 214, 216 (5th Cir. 1997).   Banda does not

dispute that his prior offense was in fact committed for profit.

His only complaint is that the probation officer and district

court went the extra mile in determining the true nature of his

prior offense.   In our view, this effort does not merit

correction under the plain error standard.

     Banda also contends that his sentence is unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000), because his

prior felony conviction was not alleged in his indictment.    Banda
                            No. 02-50583
                                 -3-

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but seeks to preserve the

issue for further review.   The judgment of the district court is

AFFIRMED.
