                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                No. 00-40615

                             Summary Calendar


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                   versus

AZZEDINE FAIDY,

                                                Defendant-Appellant.



            Appeal from the United States District Court
                  For the Eastern District of Texas
                            (1:99-CR-70-1)

                              August 22, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Azzedine Faidy appeals from his conviction and sentence for

attempted reentry following deportation, in violation of 8 U.S.C.

§ 1326.   We affirm.

      Faidy argues that the evidence was insufficient to support a

finding that he attempted to reenter the United States. Because we




      *
       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should not be published and is not precedent except under the limited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.
draw all credibility inferences in favor of the verdict,1 we must

credit the testimony of the officers who testified that Faidy

falsely claimed to be a United States citizen when questioned on

board a vessel in Port Arthur, Texas.             If his claim were true, it

would have entitled him to debark from the vessel in which he had

stowed away and to remain in the United States.            In a sworn written

statement, Faidy stated that his desire to return to his wife in

the United States was “why I came back.”            These facts all evidence

intent to return to the United States and efforts to do so.                   A

reasonable jury could have determined beyond a reasonable doubt

that Faidy attempted to enter the United States.2            The evidence was

sufficient.

      Faidy next argues that the district court erred by enhancing

his offense level by 16 levels because of a prior aggravated felony

conviction.         Faidy   claims   that   the    prior   conviction   was   a

misdemeanor under state law.         Faidy concedes that his argument is

foreclosed by circuit precedent but wishes to preserve the issue

for possible further review.3




      1
          See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1132 (5th Cir.
1993).
      2
          See id. at 1132-33.
      3
        Under Fifth Circuit precedent, the state’s characterization of a crime
as a misdemeanor or felony is irrelevant. See Lopez-Elias v. Reno, 209 F.3d 788,
792 n.6 (5th Cir. 2000). Nor does it matter that a portion of the sentence is
suspended. See id. at 791. A theft offense for which the term of imprisonment
is at least one year is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(G).

                                       2
     Finally, Faidy contends that the aggravated felony conviction

that resulted in his increased sentence under 8 U.S.C. § 1326(b)(2)

was an element of the offense that should have been charged in the

indictment and proven to the jury beyond a reasonable doubt.                 He

acknowledges that his argument is foreclosed by the Supreme Court’s

decision in Almendarez-Torrez v. United States,4 but he seeks to

preserve the issue for further review in light of the decision in

Apprendi v. New Jersey.5

     Because the evidence was sufficient to convict Faidy, and his

other    arguments    are   foreclosed      by   circuit   and   Supreme   Court

precedent, the judgment of the district court is AFFIRMED.




     4
         523 U.S. 224, 247 (1998).
     5
         530 U.S. 466, 489-90 (2000).

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