                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 18, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-40942
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

JOSE MARCOS CASTILLO-HERNANDEZ,

                                    Defendant-Appellant.


                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-237-1
                      --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Marcos Castillo-Hernandez contends for the first time

on appeal that the aggravated felony enhancement found in

8 U.S.C. § 1326(b) is unconstitutional under Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000).   He concedes that this argument

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

(1998), but asserts that Almendarez-Torres has been called into

doubt by Apprendi v. New Jersey, 530 U.S. 466 (2000).      See United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).     He seeks 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this opinion should not be published and is not precedent except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. 03-40942
                               -2-

preserve the issue for possible Supreme Court review.   The

judgment is

     AFFIRMED.
