IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20156 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GARCIA-SANDOVAL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-584-1 -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Garcia-Sandoval appeals the 37-month sentence imposed

following his plea of guilty to a charge of being found in the

United States after deportation, a violation of

.

He contends that his prior state felony conviction for possession

of a controlled substance is not an “aggravated felony” for

purposes of U.S.S.G. § 2L1.2(b)(1)(C) and

(a)(43)(B).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20156 -2-

In United States v. Caicedo-Cuero,

(5th Cir. 2002), this court held that possession of a controlled

substance is an “aggravated felony” for purposes of

(b)(2) and U.S.S.G. § 2L1.2 (2001). Accordingly, Garcia’s

argument is foreclosed.

Garcia also argues that the felony conviction that resulted

in his increased sentence under

(b)(2) was an

element of the offense that should have been charged in the

indictment. He acknowledges that his argument is foreclosed by

the Supreme Court’s decision in 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). Garcia’s argument is foreclosed. The

judgment of the district court is AFFIRMED.