IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50531 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISMAEL VEGA-ALVARADO, also known as Jose Luis Medina-Perez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-2208-ALL-DB -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ismael Vega-Alvarado 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. Vega-Alvarado

argues for the first time on appeal that his prior felony

conviction for possession of a controlled substance did not merit

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

for an aggravated felony. He argues 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50531 -2-

received only the four-level adjustment provided in

U.S.S.G. § 2L1.2(b)(1)(D) for “any other felony.” Vega-

Alvarado’s arguments regarding the definitions of “drug

trafficking offense” and “aggravated felony” 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

Vega-Alvarado’s sentencing guideline calculation.

Vega-Alvarado also argues for the first time on appeal 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. Vega-Alvarado 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.