United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 22, 2003

Charles R. Fulbruge III Clerk No. 03-40233 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO GOMEZ-RAMIREZ, also known as Armando Gomez-Rhea,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-490-1 --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Armando Gomez-Ramirez appeals his conviction of attempting

to reenter the United States without authorization following

deportation after conviction of an aggravated felony. He argues,

for the first time on appeal, that

(b) is

unconstitutional because it treats a prior conviction for a

felony or aggravated felony as a sentencing factor and not as an

element of the offense. Gomez-Ramirez’s argument is foreclosed

by Almendarez-Torres v. United States,

, 239-47

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40233 -2-

(1998). Apprendi v. New Jersey,

(2000), did

not overrule that decision. See United States v. Dabeit,

(5th Cir. 2000). Thus, the district court did not

err in sentencing Gomez-Ramirez under

(b).

AFFIRMED.