IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21179 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDI MAURICIO CONTRERAS, Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-314-1 - - - - - - - - - - February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Fredi Mauricio Contreras was convicted of illegal reentry

into the United States after deportation, in violation of

. He appeals the district court’s interpretation

of U.S.S.G. § 2L1.2(b)(1)(C) at his resentencing. He argues that

his prior felony conviction for possession of heroin did not

merit the eight-level adjustment provided in § 2L1.2(b)(1)(C) for

an aggravated felony, and that he should have received only the

four-level adjustment provided in § 2L1.2(b)(1)(D) for “any other

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21179 -2-

felony.” Contreras’s arguments regarding the definitions of

“drug trafficking offense” and “aggravated felony” were recently

rejected by this court in United States v. Caicedo-Cuero,

(5th Cir. 2002). The district court did

not err in assessing an eight-level adjustment, pursuant to

§ 2L1.2(b)(1)(C), to Contreras’s sentencing guideline

calculation. Id.

For the first time on appeal, Contreras argues 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. He contends that the

unconstitutionality of the statute is not remedied by treating

the prior aggravated felony as an element of the offense and

including it in the indictment. Contreras concedes that his

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

(1998), but he seeks to preserve 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,

; see also

United States v. Dabeit,

(5th Cir. 2000).

Accordingly, this argument lacks merit.

AFFIRMED.