                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-41349
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DOMINGO GARCIA,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. B-03-CR-260-1
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Domingo Garcia appeals the sentence imposed following his

guilty-plea conviction for being an alien unlawfully found in the

United States following deportation after having been previously

convicted of an aggravated felony, in violation of 8 U.S.C.

§ 1326.   For the first time on appeal, Garcia argues that the

sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Garcia acknowledges that his argument is foreclosed by


     *
       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this opinion should not be published and is not precedent except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. 03-41349
                                -2-

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

seeks to preserve the issue for Supreme Court review.

     Apprendi did not overrule Almendarez-Torres.   See Apprendi,

530 U.S. at 489-90.   Accordingly, the judgment of the district

court is AFFIRMED.
