                                                        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. 02-41446
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MAGDALENO REYES-BAUTISTA,

                                     Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. L-02-CR-587-ALL
                       --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Magdaleno Reyes-Bautista appeals his guilty-plea conviction

and sentence for being found in the United States, without

permission, following deportation, in violation of 8 U.S.C.

§ 1326.   Reyes-Bautista concedes that his appellate arguments are

foreclosed.    He nevertheless raises two issues to preserve them

for possible en banc or Supreme Court review.

     Reyes-Bautista renews his argument that the district court

erred in determining that his prior state felony conviction for

     *
        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that this opinion should not be published and is not precedent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. 02-41446
                                -2-

possession of cocaine was a “drug trafficking crime” under

8 U.S.C. § 1101(a)(43)(B) and thus an “aggravated felony” which

warranted an eight-level increase in his base offense level under

U.S.S.G. § 2L1.2(b)(1)(C)(2001) and 8 U.S.C. § 1326(b)(2).

Reyes-Bautista’s argument regarding the definitions of “drug

trafficking crime” and “aggravated felony” is foreclosed by

United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.

2002), cert. denied, 123 S. Ct. 1948 (2003).   The district court

did not err in sentencing Reyes-Bautista under U.S.S.G.

§ 2L1.2(b)(1)(C)(2001) and 8 U.S.C. § 1326(b)(2).

     Reyes-Bautista also argues, for the first time on appeal,

that 8 U.S.C. § 1326(b) is unconstitutional because it treats a

prior conviction for a felony or aggravated felony as a

sentencing factor and not as an element of the offense.   Reyes-

Bautista’s argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235, 239-47 (1998).   Apprendi v. New

Jersey, 530 U.S. 466, 489-90 (2000), did not overrule that

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

Cir. 2000).   Thus, the district court did not err in sentencing

Reyes-Bautista under 8 U.S.C. § 1326(b).

     The judgment of the district court is AFFIRMED.
