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. 04-40170 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANKLIN ISMAEL LARIOS-ANDRADE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:03-CR-1592-1 --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Franklin Ismael Larios-Andrade appeals his conviction and

sentence for illegal reentry following deportation. He argues

that the district court erred by characterizing his 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) and

(a)(43)(B), when that same offense was punishable

only as a misdemeanor under federal law. This issue, however, is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40170 -2- foreclosed by United States v. Caicedo-Cuero,

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

(2003), and

United States v. Hinojosa-Lopez,

(5th Cir.

1997).

Larios-Andrade also argues that the “felony” and “aggravated

felony” provisions of

(b) are unconstitutional in

light of Apprendi v. New Jersey,

(2000). He

acknowledges that his argument is foreclosed, but seeks to

preserve the issue for possible Supreme Court review. As Larios-

Andrade concedes, this issue is foreclosed. See Almendarez-

Torres v. United States,

(1998); United States

v. Dabeit,

(5th Cir. 2000).

AFFIRMED.