United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 10, 2003

Charles R. Fulbruge III Clerk No. 03-40791 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO LOZANO-SALAZAR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-03-CR-144-1 --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Armando Lozano-Salazar appeals his conviction of being found

in the United States 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. Lozano-Salazar’s

argument is foreclosed by Almendarez-Torres v. United States,

(1998). Apprendi v. New Jersey, 530 U.S.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40791 -2-

466, 489-90 (2000), did not overrule that decision. See United

States v. Dabeit,

(5th Cir. 2000). Thus, the

district court did not err in sentencing Lozano-Salazar under

(b).

AFFIRMED.