IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20082 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS RIOS-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-576-ALL -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Carlos Rios-Garcia pleaded guilty to one charge of

illegal reentry into the United States, a violation of

, and he was sentenced to 30 months in prison. He now

appeals his conviction and sentence. He first argues that the

district court erred by applying U.S.S.G. § 2L1.2(b)(1)(C) at his

sentencing. He contends that his prior felony conviction for

possession of cocaine did not merit the eight-level enhancement

provided in § 2L1.2(b)(1)(C) for an aggravated felony and that he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20082 -2-

should have received only the four-level enhancement provided in

§ 2L1.2(b)(1)(D) for “any other felony.” Rios-Garcia’s arguments

on this issue are foreclosed by our decision in United States v.

Caicedo-Cuero,

(5th Cir. 2002).

Rios-Garcia also argues, for the first time on appeal, that

(b)(1) and (b)(2) are unconstitutional because

they treat a prior conviction for an aggravated felony as a

sentencing factor and not an element of the offense. Rios-Garcia

concedes that this argument is foreclosed by Almendarez-Torres v.

United States,

(1998), but he seeks to preserve the

issue for Supreme Court review in light of Apprendi v. New

Jersey,

(2000). Apprendi did not overrule

Almendarez-Torres. See Apprendi,

; see also

United States v. Dabeit,

(5th Cir. 2000).

Rios-Garcia has shown no error in the judgment of the district

court. Accordingly, that judgment is AFFIRMED.