IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40927 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISRAEL HERRERA-MUNIZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-02-CR-38-1 -------------------- February 20, 2003

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

PER CURIAM:*

Israel Herrera-Muniz (“Herrera”) was convicted after a

guilty plea to illegal reentry into the United States after

deportation, in violation of

. He raises two

issues on appeal, which we review for plain error. United States

v. Ocana,

(5th Cir. 2000).

Herrera argues that the district court erred by applying

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40927 -2-

prior felony conviction for possession of marijuana 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

felony.” Herrera’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). Herrera’s argument that drug possession is not an

aggravated felony under

(a)(43)(B) and 1326(b)(2)

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). Thus, the district court did not plainly err in assessing

an eight-level adjustment.

Herrera also argues that, in light of Apprendi v. New

Jersey,

(2000),

(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. This argument is foreclosed by Almendarez-Torres v.

United States,

(1998). Apprendi did not overrule

Almendarez-Torres. See Apprendi,

; see also

United States v. Dabeit,

(5th Cir. 2000).

Accordingly, this argument lacks merit.

AFFIRMED.