                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 18, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-41049
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RICARDO JUAREGUI-DURAN,
also known as Jose Roberto Gomez,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. B-03-CR-303-ALL
                        --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Ricardo Juaregui-Duran appeals his guilty plea conviction

for illegal reentry into the United States following an

aggravated felony conviction in violation of 8 U.S.C. § 1326.         As

an initial matter, the Government’s motion to dismiss is DENIED.

     For the first time on appeal, Juaregui-Duran argues that the

sentencing provisions of 8 U.S.C. § 1326(b)(1) & (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Juaregui-Duran acknowledges that his argument is

     *
        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that this opinion should not be published and is not precedent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. 03-41049
                                 -2-

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), but he seeks to preserve the issue for Supreme Court

review.   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).   Accordingly, the judgment of the

district court is affirmed.

     MOTION TO DISMISS DENIED; AFFIRMED.
