                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          March 2, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 03-10617
                          Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ALVA EUGENE LYTLE, JR.,

                                         Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:02-CR-307-ALL-P
                       --------------------
Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     Alva Eugene Lytle, Jr., also known as Al Lytle and Alva

Lyttle, pleaded guilty pursuant to a written plea agreement to

being a felon in possession of ammunition transported in

interstate commerce.   His sentence was enhanced due to his status

as an armed career criminal under 18 U.S.C. § 924(e).

     Lytle first argues on appeal that under Apprendi v. New

Jersey, 530 U.S. 466, 476 (2000), his sentence should not have

been enhanced based on 18 U.S.C. § 924(e) because the prior

     *
        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that this opinion should not be published and is not precedent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. 03-10617
                                -2-

convictions used to enhance his sentence were not charged by

indictment and were not proved to a jury beyond a reasonable

doubt.   He concedes that he is raising this challenge to preserve

further review.   This issue is foreclosed.    See Almendarez-Torres

v. United States, 523 U.S. 224 (1998);     United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000); United States v. Stone, 306

F.3d 241, 243 (5th Cir. 2002); United States v. Affleck, 861 F.2d

97, 99 (5th Cir. 1988).

     Lytle also argues that the district court’s application of

18 U.S.C. § 924(e) to his sentence resulted in a disproportionate

sentence in violation of the Eighth Amendment’s prohibition

against cruel and unusual punishment.     However, under the waiver-

of-appeal provision in Lytle’s signed, written plea agreement, he

cannot raise this claim on appeal.   See United States v.

Melancon, 972 F.2d 566, 567 (5th Cir. 1992).

     Lytle next contends that the district court erred in

applying 18 U.S.C. § 924(e) to enhance his sentence because the

district court did not require the Government to present evidence

of the prior convictions used for enhancement.    However, the

district court did not clearly err in using information in the

presentence report as evidence of Lytle’s prior convictions

because Lytle did not satisfy his burden of proving that the

presentence report was materially untrue, inaccurate, or

unreliable.   See U.S.S.G. § 6A1.3(a), p.s.; United States v.
                             No. 03-10617
                                  -3-

Floyd, 343 F.3d 363, 371-72 (5th Cir. 2003); United States v.

Cothran, 302 F.3d 279, 286 (5th Cir. 2002).

     Lytle argues that 18 U.S.C. § 922(g)(1) is unconstitutional

on its face and as applied because the statute does not require a

substantial effect on interstate commerce and because his

possession of the ammunition was not shown to have an effect on

interstate commerce.    He acknowledges that his arguments are

foreclosed by circuit precedent, but he seeks to preserve the

issue for possible review.    As Lytle concedes, this issue is

foreclosed.     See United States v. Daugherty, 264 F.3d 513, 518

(5th Cir. 2001);     United States v. Rawls, 85 F.3d 240, 242 (5th

Cir. 1996); United States v. Gresham, 118 F.3d 258, 264-65 (5th

Cir. 1997); United States v. Fitzhugh, 984 F.2d 143, 145-46 (5th

Cir. 1993).

     AFFIRMED
