          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 June 19, 2008
                                No. 07-40601
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

BENJAMIN RODRIGUEZ-RODRIGUEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:06-CR-1139-1


Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
      Benjamin Rodriguez-Rodriguez (Rodriguez) appeals his conviction and
sentence for illegal reentry. He argues that the district court erred in enhancing
his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) based on a finding that his
Texas conviction for possession of a controlled substance with intent to deliver
was a “drug trafficking offense.”      Rodriguez correctly concedes that his




      *
      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should not be published and is not precedent except under the limited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. 07-40601

Guidelines argument is foreclosed by United States v. Ford, 509 F.3d 714, 717
(5th Cir. 2007), and he raises it solely to preserve its further review.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Rodriguez also
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      AFFIRMED.




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