                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-41320
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MANUEL DAMIAN-GARCIA,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. L-03-CR-774-ALL
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Manuel Damian-Garcia pleaded guilty to one count of illegal

reentry into the United States, and the district court sentenced

him to 36 months in prison and a three-year term of supervised

release.   Damian-Garcia argues that the district court erred by

characterizing his state felony conviction for simple possession

of cocaine as an “aggravated felony” for purposes of U.S.S.G.

§ 2L1.2(b)(1)(C), when that same offense is punishable only as a

misdemeanor under federal law.   This issue, however, 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this opinion should not be published and is not precedent except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. 03-41320
                                  -2-

foreclosed by our precedent.    See United States v. Caicedo-Cuero,

312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538 U.S. 1021

(2003); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94

(5th Cir. 1997).   Damian-Garcia has not shown that the district

court erred by characterizing his state conviction as an

aggravated felony for U.S.S.G. § 2L1.2(b)(1)(C) purposes and by

sentencing him accordingly.

     Damian-Garcia argues that 8 U.S.C. § 1326(b) is

unconstitutional on its face and as applied in his case 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).

     Damian-Garcia has shown no error in the district court’s

judgment.   Accordingly, that judgment is AFFIRMED.
