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. 03-40507 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARMEN NOEL FUENTES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-CR-789-1 --------------------

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

PER CURIAM:*

Carmen Noel Fuentes appeals his sentence for his guilty-plea

conviction for illegal reentry into the country after having been

deported following an aggravated felony conviction. See

(b)(2). For the first time on appeal, he argues that

§ 1326(b)(2) is unconstitutional in light of Apprendi v. New

Jersey,

(2000).

As conceded by Fuentes, his challenge to the

constitutionality of

(b)(2) is foreclosed by

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40507 -2-

Almendarez-Torres v. United States,

(1998),

which was not overruled by Apprendi. See United States v.

Dabeit,

(5th Cir. 2000). Moreover, the

indictment specifically charged that Fuentes had previously been

convicted of an aggravated felony.

AFFIRMED.