                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 24, 2003

                                                          Charles R. Fulbruge III
                       FOR THE FIFTH CIRCUIT                      Clerk



                            No. 02-40710
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN CARLOS MORENO-CASTILLO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. B-02-CR-67-1
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Juan Carlos Moreno-Castillo (“Moreno”) appeals his guilty-

plea conviction and sentence for illegal reentry in violation of

8 U.S.C. § 1326.   Moreno concedes that his arguments are

foreclosed by circuit law but raises two issues to preserve them

for possible en banc and Supreme Court review.




     *
        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that this opinion should not be published and is not precedent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. 02-40710
                                -2-

     Moreno renews his argument that his prior felony conviction

for possession of a controlled substance did not merit the eight-

level adjustment under U.S.S.G. § 2L1.2(b)(1)(C) for an

aggravated felony and that he should have received only the four-

level adjustment provided in U.S.S.G. § 2L1.2(b)(1)(D) for “any

other felony.”   Moreno’s argument regarding the definitions of

“drug trafficking offense” and “aggravated felony” was recently

foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697, 705-

07 (5th Cir. 2002), petition for cert. filed, (Mar. 19, 2003)

(02-9747).   The district court thus did not err in assessing the

eight-level adjustment.

     Moreno also argues, for the first time on appeal, that

8 U.S.C. § 1326 is unconstitutional because it treats a prior

conviction for an aggravated felony as a mere sentencing factor

and not as an element of the offense.     Apprendi v. New Jersey,

530 U.S. 466 (2000), did not overrule Almendarez-Torres v. United

States, 523 U.S. 224 (1998).   See Apprendi, 530 U.S. at 489-90;

see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).

     The judgment of the district court is AFFIRMED.
