                                                       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. 03-40836
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JUAN MELO OSORIO, also known as Jose Garcia-Santiago,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. B-03-CR-25-1
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Juan Melo Osorio appeals his conviction and sentence

for illegal reentry.   He argues that the district court plainly

erred by characterizing his state felony conviction for simple

possession of cocaine as an “aggravated felony” for purposes of

U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(B), when

that same offense was punishable only as a misdemeanor under




     *
        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that this opinion should not be published and is not precedent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. 03-40836
                                  -2-

federal law.     This issue, however, is foreclosed by United States

v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir. 1997), and,

therefore, Osorio has not demonstrated plain error.

     Osorio also argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(a) and (b) constitute an

unconstitutional sentencing provision.      He acknowledges that his

argument is foreclosed, but he seeks to preserve the issue for

possible Supreme Court review in light of the Supreme Court’s

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).      As

Osorio concedes, this issue is foreclosed.      See Almendarez-Torres

v. United States, 523 U.S. 224, 247 (1998); United States v.

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

     AFFIRMED.
