                                                       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. 03-40822
                        Conference Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

HERBERT RODRIGUEZ,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-1772-ALL
                       --------------------

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

PER CURIAM:*

     Herbert Rodriguez appeals his guilty plea conviction and

sentence for illegal reentry following deportation in violation

of 8 U.S.C. § 1326.   He 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).      Rodriguez

concedes that his argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235, 239-47 (1998).   Apprendi did

not overrule Almendarez-Torres.   See Apprendi, 530 U.S. at


     *
        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that this opinion should not be published and is not precedent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. 03-40822
                                -2-

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

2000).   Therefore, the judgment of the district court is

AFFIRMED.
