Florencio Lazo-Raya appeals his conviction of being present in the United States following deportation. He argues, for the first time on appeal, that 8 U.S.C. § 1326(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. He also contends that his sentence is illegal because his indictment did not allege that he committed an aggravated felony before he was deported. Lazo-Raya’s arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not overrule that decision. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Thus, the district court did not err in sentencing Lazo-Raya under 8 U.S.C. § 1326(b).

AFFIRMED.