                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 22, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-40537
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN LORENZO REYES-RODRIGUEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-02-CR-429-1
                       --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Juan Lorenzo Reyes-Rodriguez appeals his guilty-plea

conviction and sentence for being an alien found in the United

States unlawfully after deportation.   He argues for the first

time on appeal that 8 U.S.C. § 1326(b) is unconstitutional

because it does not require the prior aggravated felony

conviction used to increase his sentence to be alleged in the

indictment and proven as an element of the offense.     He argues

that because the indictment did not allege his prior aggravated


     *
        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that this opinion should not be published and is not precedent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. 03-40537
                                -2-

felony conviction, his sentence to more than two years of

imprisonment and one year of supervised release is illegal.

     Reyes-Rodriguez acknowledges that his arguments are

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

the issues for Supreme Court review in light of the decision in

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

     Apprendi did not overrule Almendarez-Torres.   See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).   Reyes-Rodriguez’s arguments are foreclosed.

The judgment of the district court is AFFIRMED.
