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. 03-40808 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS DONALDO ESPINOSA-HERNANDEZ, also known as Ronnie Espinosa,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-147-1 --------------------

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

PER CURIAM:*

Jesus Donaldo Espinosa-Hernandez appeals his guilty plea

conviction of being found in the United States without permission

after having been removed. He argues for the first time on

appeal that the felony conviction that resulted in his increased

sentence under

(b)(2) was an element of the

offense that should have been charged in the indictment and that

(b)'s felony and aggravated felony provisions are

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40808 -2-

unconstitutional in light of Apprendi v. New Jersey,

(2000). As he acknowledges, his argument is foreclosed by

Almendarez-Torres v. United States,

(1998).

See United States v. Dabeit,

(5th Cir. 2000).

AFFIRMED.