                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          March 2, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-10654
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

FRANCISCO JAVIER RODRIGUEZ,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 4:03-CR-30-ALL-A
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Francisco Javier Rodriguez appeals his conviction and

sentence for illegal reentry after deportation.    Rodriguez has

filed a motion for leave to file an out-of-time reply brief; that

motion is GRANTED.   He first argues on appeal that the district

court erred in its application of U.S.S.G. § 4A1.2 by counting

three prior drug convictions separately, which increased his

criminal history score and resulted in a higher guideline range.

We conclude that Rodriguez has not shown that the district court

     *
        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that this opinion should not be published and is not precedent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. 03-10654
                                  -2-

clearly erred in finding that the prior cases were not

consolidated.     See Buford v. United States, 532 U.S. 59, 64-66

(2001); United States v. Moreno-Arredondo, 255 F.3d 198, 203 n.10

(5th Cir. 2001.    “The applicability vel non of Tex. Penal Code

§ 3.03 does not affect our analysis.”       United States v. Fitzhugh,

984 F.2d 147 n.18 (5th Cir. 1993)

     The district court did not clearly err in finding that the

three prior offenses were unrelated.    Rodriguez’s three

convictions involved three separate transactions over a three-

month period involving differing amounts of cocaine.

Furthermore, although Rodriguez was charged for all of the

offenses on the same day by the same judge and his sentences were

concurrent, he was indicted separately for each offense, each

indictment was assigned a different docket number, and the

sentences were not all the same length.      The foregoing suggests

that the two offenses should not be considered consolidated for

federal sentencing purposes.     See United States v. Huskey, 137

F.3d 283, 288 (5th Cir. 1998); United States v. Kates, 174 F.3d

580, 584 (5th Cir. 1999).

     Rodriguez also argues that his guilty plea was not voluntary

because the district court did not admonish him that the

“aggravated felony” provision of 8 U.S.C. § 1326(b)(2) stated an

essential element of the offense to which he was pleading guilty.

He acknowledges that his arguments are foreclosed by circuit

precedent, but he seeks to preserve the issue for possible
                          No. 03-10654
                               -3-

Supreme Court review in light of the Supreme court’s decision in

Apprendi v. New Jersey, 530 U.S. 466, 519 (2000).   As Rodriguez

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.
