                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     December 15, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 04-41516
                            Summary Calendar



                        UNITED STATES OF AMERICA,

                           Plaintiff-Appellee,

                                  versus

                    GERARDO FIGUEROA-CASTRO, true name
             Gerardo Alfonso Castro-Godinez, also known as
                  Gerardo Godinez-Castro, also known as
                          Alfonso Castro-Godines

                          Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 5:04-CR-1016-ALL
                          --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges

PER CURIAM:*

     Gerardo Figueroa-Castro appeals his sentence under 8 U.S.C. §

1326 for illegal re-entry into the United States after having been

deported. First, Figueroa asserts that the district court erred in

concluding that his prior state felony conviction for simple

possession of cocaine was an “aggravated felony” for purposes of 8

U.S.C.   §   1326(b).    Our   precedent   holds   that   a   state     felony

conviction for simple drug possession is properly considered an

     *
       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this opinion should not be published and is not precedent except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. 04-41516
                                   -2-

aggravated felony for purposes of § 1326(b).        See United States v.

Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001); United States v.

Hinojosa-Lopez, 30 F.3d 691, 693-94 (5th Cir. 1997).         Accordingly,

this issue is foreclosed.

     Second, Figueroa asserts that the “felony” and “aggravated

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

The Supreme Court’s decision in Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998), controls this issue.           We must follow

Almendarez-Torres   “unless   and   until    the   Supreme   Court   itself

determines to overrule it.” United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000) (internal quotation and citation omitted).

This issue is also foreclosed.

     The district court’s judgment is AFFIRMED.
