                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 21, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-41287
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RICARDO VARELA,
also know as John Michael Reyes,

                                     Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. M-03-CR-481-1
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Ricardo Varela argues 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).   Varela concedes that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

asserts that Almendarez-Torres has been called into doubt by

Apprendi and he seeks to preserve the issue for possible Supreme

Court review.   We AFFIRM Valera’s conviction and sentence.

     *
        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that this opinion should not be published and is not precedent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. 03-41287
                               -2-

See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

     AFFIRMED.
