IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20503 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS OYUELA-BAQUEDANO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-896-ALL -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Luis Oyuela-Baquedano (“Oyuela”) appeals the sentencing

following his guilty-plea conviction for illegal reentry into

the United States following deportation. Oyuela contends that

(b)(2) is unconstitutional because it treats a

prior conviction for an aggravated felony as a mere sentencing

factor and not an element of the offense. Oyuela concedes that

his argument is foreclosed by Almendarez-Torres v. United States,

(1998), but he nevertheless seeks to preserve the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20503 - 2 -

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). Oyuela’s

argument is foreclosed. Therefore, Oyuela’s sentence is

AFFIRMED.