                                                       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. 04-40220
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OCIEL MARTINEZ-MARTINEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-777-ALL
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Ociel Martinez-Martinez (Martinez) appeals his conviction

and sentence for illegal reentry following deportation.       He

argues that the district court plainly erred by characterizing

his state felony conviction for simple possession of marijuana as

an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C)

and 8 U.S.C. § 1101(a)(43)(B), when that same offense was

punishable only as a misdemeanor under federal law.     This issue,

however, is foreclosed by United States v. Caicedo-Cuero,


     *
       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this opinion should not be published and is not precedent except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. 04-40220
                                -2-
312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538 U.S. 1021

(2003), and United States v. Hinojosa-Lopez, 130 F.3d 691, 694

(5th Cir. 1997).   Therefore, Martinez has not demonstrated plain

error.

     Martinez also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in

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

acknowledges that his argument is foreclosed, but seeks to

preserve the issue for possible Supreme Court review.    As

Martinez 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.
