
    UNITED STATES of America, Plaintiff-Appellee, v. Herbert RODRIGUEZ, Defendant-Appellant.
    No. 03-40822
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Feb. 18, 2004.
    Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
   PER CURIAM:

Herbert Rodriguez appeals bis guilty plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Rodriguez concedes that his argument is 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 did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). Therefore, the judgment of the district court is AFFIRMED. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     