IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20304 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GOMEZ-CASTELLON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-746-ALL -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Gomez-Castellon (“Gomez”) appeals from his conviction

and sentence for illegal reentry into the United States after

commission of an aggravated felony. His sole argument on appeal

is that

(b), which was used to enhance his

sentence based on his prior aggravated felony conviction, is

unconstitutional. Gomez acknowledges that his argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States,

(1998), but he seeks to preserve

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20304 -2-

the issue for Supreme Court review in light of the decision in

Apprendi v. New Jersey,

(2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). Gomez’s

argument is foreclosed. Accordingly, the judgment of the

district court is AFFIRMED.