United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 18, 2004

Charles R. Fulbruge III Clerk No. 03-40942 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JOSE MARCOS CASTILLO-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-237-1 --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Marcos Castillo-Hernandez contends for the first time

on appeal that the aggravated felony enhancement found in

(b) is unconstitutional under Apprendi v. New

Jersey,

(2000). He concedes that this argument

is foreclosed by Almendarez-Torres v. United States,

(1998), but asserts that Almendarez-Torres has been called into

doubt by Apprendi v. New Jersey,

(2000). See United

States v. Dabeit,

(5th Cir. 2000). He seeks to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40942 -2-

preserve the issue for possible Supreme Court review. The

judgment is

AFFIRMED.