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. 04-40291 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ANTONIO RODRIGUEZ-MEDINA, also known as Juan Rodriguez-Medina,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-1067 --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Juan Antonio Rodriguez-Medina appeals his guilty-plea

conviction and sentence for illegal reentry following

deportation. He contends that the “felony” and “aggravated

felony” provisions of

(b) are unconstitutional in

light of Apprendi v. New Jersey,

(2000).

Alternatively, he contends that he may not be convicted and

sentenced under

(b) because the indictment did

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40291 -2-

not allege that he was deported after a qualifying felony or

aggravated felony. Rodriguez-Medina acknowledges that his

argument is foreclosed, but seeks to preserve the issue for

possible Supreme Court review. As Rodriguez-Medina concedes,

this issue is foreclosed. See Almendarez-Torres v. United

States,

(1998); United States v. Dabeit,

(5th Cir. 2000).

AFFIRMED.