                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 25, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-21161
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RICARDO BATALLA-SANCHEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02-CR-174-1
                       --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Ricardo Batalla-Sanchez (“Batalla-Sanchez”) appeals the

sentence following his guilty plea for illegal reentry into the

United States following deportation.   Batalla-Sanchez argues that

his prior conviction for possession of marihuana is not an

aggravated felony under the November 1, 2001, Sentencing

Guidelines § 2L1.2(b)(1)(C).   He also argues that the sentencing

provisions in 8 U.S.C. § 1326(b)(1) & (b)(2) are unconstitutional

based on Apprendi v. New Jersey, 530 U.S. 466 (2000).      Batalla-

     *
        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that this opinion should not be published and is not precedent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. 02-21161
                               -2-

Sanchez concedes that his arguments are foreclosed, but he

nevertheless seeks to preserve them for Supreme Court review.

     Batalla-Sanchez’ arguments regarding the definitions of

“drug trafficking offense” and “aggravated felony” are foreclosed

by our decision in United States v. Caicedo-Cuero, 312 F.3d 697,

705-11 (5th Cir. 2002), cert. denied, 123 S. Ct. 1948 (2003).

Batalla-Sanchez’ contention that the enhancement provisions in

8 U.S.C. § 1326(b)(1) & (b)(2) are unconstitutional lacks merit

because Apprendi did not overrule Almendarez-Torres v. United

States, 523 U.S. 24 (1998).   See Apprendi, 530 U.S. at 489-90;

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

     For the foregoing reasons, Batalla-Sanchez’ sentence is

AFFIRMED.
