                                                        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. 03-40507
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

CARMEN NOEL FUENTES,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. B-CR-789-1
                      --------------------

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

PER CURIAM:*

     Carmen Noel Fuentes appeals his sentence for his guilty-plea

conviction for illegal reentry into the country after having been

deported following an aggravated felony conviction.      See 8 U.S.C.

§ 1326(b)(2).   For the first time on appeal, he argues that

§ 1326(b)(2) is unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).

     As conceded by Fuentes, his challenge to the

constitutionality of 8 U.S.C. § 1326(b)(2) is foreclosed by


     *
        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that this opinion should not be published and is not precedent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. 03-40507
                               -2-

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

which was not overruled by Apprendi.   See United States v.

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

indictment specifically charged that Fuentes had previously been

convicted of an aggravated felony.

     AFFIRMED.
