               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                              No. 02-50264
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

CARLOS CEDILLO-AGUIRRE,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. DR-01-CR-528-ALL-WWJ
                       --------------------
                         December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Carlos Cedillo-Aguirre (“Cedillo”) appeals the sentencing

following his jury conviction for illegal reentry into the United

States following deportation. Cedillo contends that 8 U.S.C.

§ 1326(b)(2) is unconstitutional because it treats a prior

conviction for an aggravated felony as a mere sentencing factor

and not an element of the offense.    Cedillo concedes that his

argument is foreclosed by Almendarez-Torres v. United States, 523


     *
        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that this opinion should not be published and is not precedent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. 02-50264
                                -2-

U.S. 224 (1998), but he nevertheless 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.   See Apprendi,

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

(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).   Cedillo’s

argument is foreclosed.   Therefore, Cedillo’s conviction and

sentence are AFFIRMED.
