                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-40969
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAYMUNDO GONZALES-VELASQUEZ,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-1773-ALL
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Raymundo Gonzales-Velasquez appeals his conviction and

sentence for being an alien unlawfully found in the United States

after deportation after having been convicted of an aggravated

felony in violation of 8 U.S.C. § 1326(a) & (b).   He argues that

the district court plainly erred by characterizing his state

felony conviction for simple possession of cocaine as an

“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C),

when that same offense is punishable only as a misdemeanor under



     *
       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this opinion should not be published and is not precedent except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. 03-40969
                                 -2-

federal law.   This issue, however, is foreclosed by our decisions

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

2002), cert. denied, 538 U.S. 1021 (2003), and United States v.

Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).     Therefore,

Gonzales-Velasquez has not demonstrated error, plain or

otherwise, on this issue.

     For the first time on appeal, Gonzales-Velasquez argues that

8 U.S.C. § 1326(b) is unconstitutional on its face and as applied

in his case because it does not require the fact of a prior

felony or aggravated felony conviction to be charged in the

indictment and proved beyond a reasonable doubt.

     Gonzales-Velasquez acknowledges that his arguments are

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), but he wishes to preserve the issues for Supreme Court

review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi did not overrule Almendarez-Torres.    See Apprendi, 530

U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000).    Thus, we must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

Dabeit, 231 F.3d at 984 (internal quotation marks and citation

omitted).

     Accordingly, Gonzales-Velasquez’s arguments are foreclosed,

and his conviction and sentence are AFFIRMED.
