IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21261 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER CASTILLO-ROSALES, also known as Francisco Castillo, also known as Felipe Castillo-Rosales,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-564-ALL -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Javier Castillo-Rosales pleaded guilty to 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 sentencing. He argues that his

prior felony conviction for possession of cocaine did not merit

the eight-level adjustment provided in U.S.S.G. § 2L1.2(b)(1)(C)

for an aggravated felony. He asserts that he should have

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-21261 -2-

received only the four-level adjustment provided in U.S.S.G.

§ 2L1.2(b)(1)(D) for “any other felony.” Castillo-Rosales’s

arguments are foreclosed by United States v. Caicedo-Cuero,

(5th Cir. 2002). The district court did not

err in assessing an eight-level adjustment, pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C), to Castillo-Rosales’s sentencing guideline

calculation.

For the first time on appeal, Castillo-Rosales 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. Castillo-Rosales 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.