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. 03-41181 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO RODRIGUEZ-TELLEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-03-CR-307-1 --------------------

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

PER CURIAM:*

Fernando Rodriguez-Tellez (Rodriguez) appeals his guilty

plea conviction for illegal reentry into the United States

following an aggravated felony conviction in violation of

. For the first time on appeal, Rodriguez argues

that the sentencing provisions of

(b)(1) & (2) are

unconstitutional in light of Apprendi v. New Jersey,

(2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41181 -2-

Rodriguez acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but he

seeks to preserve the issue for Supreme Court review. Apprendi

did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir.

2000).

AFFIRMED.