                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40291
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN ANTONIO RODRIGUEZ-MEDINA,
also known as Juan Rodriguez-Medina,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-1067
                      --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Juan Antonio Rodriguez-Medina appeals his guilty-plea

conviction and sentence for illegal reentry following

deportation.   He contends that the “felony” and “aggravated

felony” provisions of 18 U.S.C. § 1326(b) are unconstitutional in

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

Alternatively, he contends that he may not be convicted and

sentenced under 18 U.S.C. § 1326(b) because the indictment did


     *
        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that this opinion should not be published and is not precedent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. 04-40291
                                 -2-

not allege that he was deported after a qualifying felony or

aggravated felony.   Rodriguez-Medina acknowledges that his

argument is foreclosed, but seeks to preserve the issue for

possible Supreme Court review.    As Rodriguez-Medina 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.
