Ricardo Garcia Almanzan appeals his guilty-plea conviction of being an alien un *282 lawfully found in the United States after deportation, having previously been convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b).

Almanzan argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. He concedes that this issue is foreclosed but seeks to preserve review by the Supreme Court.

Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not overrule Almendarez-Torres. See United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001). This argument is foreclosed. Rivera, 265 F.3d at 312.

The judgment of the district court is AFFIRMED.