                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40170
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FRANKLIN ISMAEL LARIOS-ANDRADE,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:03-CR-1592-1
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Franklin Ismael Larios-Andrade appeals his conviction and

sentence for illegal reentry following deportation.     He argues

that the district court erred by characterizing his state felony

conviction for possession of a controlled substance as an

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

8 U.S.C. § 1101(a)(43)(B), when that same offense was 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this opinion should not be published and is not precedent except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. 04-40170
                               -2-
foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697,

706-11 (5th Cir. 2002), cert. denied, 538 U.S. 1021 (2003), and

United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.

1997).

     Larios-Andrade also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in

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

acknowledges that his argument is foreclosed, but seeks to

preserve the issue for possible Supreme Court review.     As Larios-

Andrade concedes, this issue is foreclosed.     See Almendarez-

Torres v. United States, 523 U.S. 224, 247 (1998); United States

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

     AFFIRMED.
