IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50675 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID CARO-GRIMALDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-232-ALL-DB -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

David Caro-Grimaldo appeals the sentence imposed following

his guilty plea conviction of illegal reentry into the United

States after deportation. He argues that the district court

erroneously enhanced his sentence by eight levels by categorizing

his prior felony conviction for possession of a controlled

substance as an aggravated felony under the 2001 version of

Sentencing Guidelines § 2L1.2(b)(1)(C). Caro argues that he

should have received only the four-level adjustment provided

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50675 -2-

in § 2L1.2(b)(1)(D) for “any other felony.” Caro’s arguments

were recently rejected by this court in United States v.

Caicedo-Cuero,

(5th Cir. 2002).

Caro also contends that the sentence-enhancing provisions

contained in

(b) are facially unconstitutional

in light of Apprendi v. New Jersey,

(2000). Caro

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States,

(1998), but seeks to preserve the

issue for further review.

AFFIRMED.