               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-50522
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus


JUAN MANUEL TREVINO-CHAVEZ,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. A-02-CR-40-ALL-SS
                       --------------------
                          January 6, 2003

Before DAVIS, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

          Juan Manuel Trevino-Chavez appeals the sentence imposed

by the district court following his guilty plea to one count of

illegally reentering the United States after deportation. Trevino-

Chavez contends that the district court abused its discretion when

determining the extent of its upward departure from the sentencing

guidelines.    He also argues that the sentencing provisions of



     *
      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this opinion should not be published and is not precedent except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. 02-50522
                                -2-

8 U.S.C. § 1326(b) are unconstitutional in light of the Supreme

Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Trevino-Chavez   acknowledges   that     his   Apprendi   argument   is

foreclosed by the Supreme Court’s decision in Almendarez-Torres v.

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

issue for further Supreme Court review.

          We have reviewed the record and the briefs submitted by

the parties and perceive no abuse of discretion in the district

court’s decision to depart upward.     See United States v. Laury, 985

F.2d 1293, 1310 (5th Cir. 1993). Under the circumstances presented

to the district court, the extent of the upward departure was

reasonable.   See United States v. Hawkins, 87 F.3d 722, 728 (5th

Cir. 1996).

          As Trevino-Chavez concedes, his Apprendi argument is

foreclosed.   See United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000), cert. denied, 531 U.S. 1202 (2001).       The judgment of

the district court is therefore AFFIRMED.

          AFFIRMED.
