                                                       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. 03-40233
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ARMANDO GOMEZ-RAMIREZ, also known as Armando Gomez-Rhea,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-490-1
                      --------------------

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

PER CURIAM:*

     Armando Gomez-Ramirez appeals his conviction of attempting

to reenter the United States without authorization following

deportation after conviction of an aggravated felony.        He 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 as an

element of the offense.    Gomez-Ramirez’s argument is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47

     *
        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that this opinion should not be published and is not precedent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. 03-40233
                                -2-

(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).   Thus, the district court did not

err in sentencing Gomez-Ramirez under 8 U.S.C. § 1326(b).

     AFFIRMED.
