IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50522 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MANUEL TREVINO-CHAVEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-02-CR-40-ALL-SS -------------------- January 6, 2003

Before DAVIS, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Juan Manuel Trevino-Chavez appeals the sentence imposed

by the district court following his guilty plea to one count of

illegally reentering the United States after deportation. Trevino-

Chavez contends that the district court abused its discretion when

determining the extent of its upward departure from the sentencing

guidelines. He also argues that the sentencing provisions of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50522 -2-

(b) are unconstitutional in light of the Supreme

Court’s holding in Apprendi v. New Jersey,

(2000).

Trevino-Chavez acknowledges that his Apprendi argument is

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

United States,

(1998), but he seeks to preserve the

issue for further Supreme Court review.

We have reviewed the record and the briefs submitted by

the parties and perceive no abuse of discretion in the district

court’s decision to depart upward. See United States v. Laury,

(5th Cir. 1993). Under the circumstances presented

to the district court, the extent of the upward departure was

reasonable. See United States v. Hawkins,

(5th

Cir. 1996).

As Trevino-Chavez concedes, his Apprendi argument is

foreclosed. See United States v. Dabeit,

(5th

Cir. 2000), cert. denied,

(2001). The judgment of

the district court is therefore AFFIRMED.

AFFIRMED.