                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS           April 24, 2003

                       FOR THE FIFTH CIRCUIT               Charles R. Fulbruge III
                                                                   Clerk


                            No. 02-41108
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

CESAR ARMANDO LEAL-RIVERA,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-02-CR-154-1
                      --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Cesar Armando Leal-Rivera appeals his guilty-plea conviction

for illegal reentry, in violation of 8 U.S.C. § 1326, and the

resulting 28-month sentence.    He argues that the district court

plainly erred at sentencing in treating his prior conviction for

possession of cocaine as an aggravated felony within the meaning

of U.S.S.G. § 2L1.2(b)(1)(C).   He acknowledges that his argument

is foreclosed by this court’s determination in United States v.


     *
        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that this opinion should not be published and is not precedent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. 02-41108
                                -2-

Caicedo-Cuero, 312 F.3d 697, 699-706 (5th Cir. 2002), petition

for cert. filed, (U.S. Mar. 19, 2003)(No. 02-9747) that a simple

drug possession offense is an “aggravated felony” within the

meaning of that sentencing guideline.

     Leal-Rivera further concedes that his argument that drug

possession is not a drug-trafficking crime and, thus, not an

aggravated felony under 8 U.S.C. § 1101(a)(43)(B) is also

foreclosed by our precedent in United States v. Rivera, 265 F.3d

310 (5th Cir. 2001), cert. denied, 534 U.S. 1146 (2002), and

United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997).

Thus, the district court did not plainly err in assessing an

eight-level adjustment of Leal-Rivera’s offense level based on

his prior felony conviction.

     Leal-Rivera also argues for the first time on appeal that,

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 8 U.S.C.

§ 1326(b)(1), (b)(2) is unconstitutional because it treats a

prior conviction for an aggravated felony as a sentencing factor

and not as an element of the offense.     He acknowledges that this

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998).   Apprendi did not overrule Almendarez-Torres.

See Apprendi, 530 U.S. at 489-90; see also United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).    Accordingly, this

argument lacks merit.

     AFFIRMED.
