                                                       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. 03-41301
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FLORENCIO LAZO-RAYA,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. M-03-CR-548-1
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Florencio Lazo-Raya appeals his conviction of being present

in the United States following deportation.   He 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.   He also contends that his sentence is illegal because

his indictment did not allege that he committed an aggravated

felony before he was deported.   Lazo-Raya’s arguments are

     *
        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that this opinion should not be published and is not precedent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. 03-41301
                                -2-

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 Lazo-Raya under 8 U.S.C.

§ 1326(b).

     AFFIRMED.
