                                                        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. 04-40163
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GERARDO OLVERA-VITELA, also known as Natalio
Avalos-Rodriguez, also known as Martin Guzman-Garcia, also
known as Pedro Morales-Dominguez,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. L-03-CR-1371-1
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Gerardo Olvera-Vitela (Olvera) appeals his guilty-plea

conviction and sentence for being found present in the United

States following deportation and removal, without having obtained

the consent of the Attorney General or the Secretary of the

Department of Homeland Security.   He argues for the first time on

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

does not require the prior aggravated felony conviction used to


     *
       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this opinion should not be published and is not precedent except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. 04-40163
                                -2-

increase his sentence to be proven as an element of the offense.

He contends that his conviction should be reformed to the lesser

included offense in 8 U.S.C. § 1326(a) and that he should be

resentenced to no more than two years of imprisonment.

     Olvera acknowledges that his argument is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States,

523 U.S. 224 (1998), but he seeks to preserve the issue for

Supreme Court review in light of the decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000).

     Apprendi did not overrule Almendarez-Torres.    Apprendi, 530

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

Cir. 2000).   Olvera’s argument is foreclosed.   The judgment of

the district court is AFFIRMED.
