
    UNITED STATES of America, Plaintiff-Appellee, v. Florencio LAZO-RAYA, Defendant-Appellant.
    No. 03-41301.
    Conference Calendar
    United States Court of Appeals, Fifth Circuit.
    April 21, 2004.
    
      James Lee Turner, Assistant US Attorney, Jeffery Alan Babcock, US Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Roland E. Dahlin, II, Federal Public Defender, Richard Bruce Gould, Molly E. Odom, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before JOLLY, JONES, and SMITH, Circuit Judges.
   PER CURIAM.

Florencio Lazo-Raya appeals his conviction of being present in the United States following deportation. He argues, for the first time on appeal, that 8 U.S.C. § 1326(b) is unconstitutional because it treats a prior conviction for a felony or aggravated felony as a sentencing factor and not as an element of the offense. He also contends that his sentence is illegal because his indictment did not allege that he committed an aggravated felony before he was deported. Lazo-Raya’s arguments are 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 v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not overrule that decision. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). Thus, the district court did not err in sentencing Lazo-Raya under 8 U.S.C. § 1326(b).

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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     