                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS      August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-41732
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ARMANDO BANEGAS-SANCHEZ,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-834-1
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Jose Armando Banegas-Sanchez (Banegas) appeals his

conviction and sentence for illegal reentry following

deportation.   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) and 8 U.S.C. § 1101(a)(43)(B), when that same

offense was punishable only as a misdemeanor under federal law.

This issue, however, is foreclosed by United States v. Caicedo-


     *
        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that this opinion should not be published and is not precedent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. 03-41732
                                 -2-

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, 694 (5th Cir. 1997).   Therefore, Banegas has not

demonstrated plain error.

     Banegas also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in

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

acknowledges that his argument is foreclosed, but seeks to

preserve the issue for possible Supreme Court review.    As Banegas

concedes, this issue is foreclosed.   See Almendarez-Torres v.

United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000).

     AFFIRMED.
