                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    June 25, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 02-41448
                        Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FRANCISCO JAVIER MORALES-HERNANDEZ,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-722-ALL
                      --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Francisco Javier Morales-Hernandez appeals his guilty-plea

conviction and sentence for being found in the United States,

without permission, following deportation, in violation of

8 U.S.C. § 1326.   Morales-Hernandez concedes that his appellate

arguments are foreclosed.   He nevertheless raises two issues to

preserve them for possible en banc or Supreme Court review.

     Morales-Hernandez renews his argument that the district

court erred in determining that his prior state felony conviction

     *
        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that this opinion should not be published and is not precedent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. 02-41448
                                -2-

for possession of cocaine was a “drug trafficking crime” under

8 U.S.C. § 1101(a)(43)(B) and thus an “aggravated felony” which

warranted an eight-level increase in his base offense level under

U.S.S.G. § 2L1.2(b)(1)(C)(2001) and 8 U.S.C. § 1326(b)(2).

Morales-Hernandez’s argument regarding the definitions of “drug

trafficking crime” and “aggravated felony” is foreclosed by

United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.

2002), cert. denied, 123 S. Ct. 1948 (2003).    The district court

did not err in sentencing Morales-Hernandez under U.S.S.G.

§ 2L1.2(b)(1)(C)(2001) and 8 U.S.C. § 1326(b)(2).

     Morales-Hernandez also argues, for the first time on appeal,

that 8 U.S.C. § 1326(b) is unconstitutional because it treats a

prior conviction for a felony or aggravated felony as a

sentencing factor and not as an element of the offense.    Morales-

Hernandez’s argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235, 239-47 (1998).     Apprendi v. New

Jersey, 530 U.S. 466, 489-90 (2000), did not overrule that

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

Cir. 2000).   Thus, the district court did not err in sentencing

Morales-Hernandez under 8 U.S.C. § 1326(b).

     The judgment of the district court is AFFIRMED.
