IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20306 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN PEDRO MIRELES-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-796-ALL -------------------- February 20, 2003

Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Pedro Mireles-Hernandez was convicted after a guilty

plea to illegal reentry into the United States after deportation,

in violation of

, and sentenced to 37 months'

imprisonment. He argues that the district court erred by

applying U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing. He argues

that his prior felony conviction for possession of marijuana did

not merit the eight-level adjustment provided in § 2L1.2(b)(1)(C)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20306 -2-

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 felony." Mireles-Hernandez's arguments regarding the

definitions of "drug trafficking offense" and "aggravated felony"

for purposes of the sentencing guidelines were recently rejected

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

(5th Cir. 2002).

Mireles-Hernandez also argues that drug possession is not

an aggravated felony under

(a)(43)(B) and

1326(b)(2), but he concedes that his argument is foreclosed by

our precedent in United States v. Rivera,

(5th Cir.

2001), cert. denied,

(2002), and United States v.

Hinojosa-Lopez,

(5th Cir. 1997), and he raises the

issue only to preserve it for possible Supreme Court review.

Thus, the district court did not err in assessing an eight-level

adjustment.

For the first time on appeal, Mireles-Hernandez also argues

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.

Mireles-Hernandez 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,

; No. 02-20306 -3-

see also United States v. Dabeit,

(5th Cir.

2000). Accordingly, this argument lacks merit.

AFFIRMED.