                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                             F I L E D
                                                       In the                                December 1, 2003
                            United States Court of Appeals                                Charles R. Fulbruge III
                                           for the Fifth Circuit                                  Clerk
                                                 _______________

                                                   m 02-41797
                                                 _______________



                                       UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                                      VERSUS

                                 MELVIN AMILCAR URBINA NOLASCO,

                                                                    Defendant-Appellant.


                                         _________________________

                                Appeal from the United States District Court
                                    for the Southern District of Texas
                                            m B-02-CR-139-1
                                     _________________________




Before SMITH, BARKSDALE, and CLEMENT,                       history points for his prior uncounseled con-
  Circuit Judges.                                           viction of illegal reentry, because that convic-
                                                            tion was obtained in violation of the Sixth
PER CURIAM:*                                                Amendment. We have reviewed the briefs,
                                                            pertinent portions of the record, and the ap-
  Melvin Urbina Nolasco claims the district                 plicable authorities and have heard the argu-
court erred in sentencing by assigning criminal             ments of counsel. In the prior proceeding, Ur-
                                                            bina Nolasco knowingly and intelligently
                                                            waived counsel, so there was no constitutional
   *
      Pursuant to 5TH CIR. R. 47.5, the court has deter-    violation.
mined that this opinion should not be published and is
not precedent except under the limited circumstances            Urbina Nolasco challenges his conviction
set forth in 5TH CIR. R. 47.5.4.
on the ground that the “felony” and “aggravat-
ed felony” provisions of 8 U.S.C. § 1326(b)(1)
and (2) are unconstitutional under Apprendi v.
New Jersey, 530 U.S. 466 (2000). Urbina
Nolasco acknowledges that this issue is fore-
closed by binding precedent, and he is raising
it to preserve it for further review.

  The judgment of conviction and sentence is
AFFIRMED.




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