United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 21, 2004

Charles R. Fulbruge III Clerk No. 04-40078 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER YANEZ-GOVEA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-03-CR-1382-ALL --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Javier Yanez-Govea pleaded guilty to one count of illegal

reentry into the United States, and the district court sentenced

him to 18 months’ imprisonment and a three-year term of

supervised release. Yanez contends that the district court erred

by characterizing his prior state felony conviction for

possession of a controlled substance as an “aggravated felony”

for purposes of U.S.S.G. § 2L1.2(b)(1)(C). This issue, however,

is foreclosed by our precedent. See United States v. Caicedo-

Cuero,

(5th Cir. 2002), cert. denied, 538

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40078 -2-

U.S. 1021 (2003); United States v. Hinojosa-Lopez,

(5th Cir. 1997).

Yanez contends that

(b) is unconstitutional

because it does not require the fact of a prior felony or

aggravated felony conviction to be charged in the indictment and

proved beyond a reasonable doubt. As Yanez concedes, this

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

(1998). See United States v. Dabeit,

(5th Cir. 2000).

The district court’s judgment is AFFIRMED.