
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Armando BANEGAS-SANCHEZ, Defendant-Appellant.
    No. 03-41732.
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided Aug. 18, 2004.
    James Lee Turner, Assistant U.S. Attorney, Houston, TX, Mark Michael Dowd, Brownsville, TX, for Plaintiff-Appellee.
    Roland E. Dahlin, II, Federal Public Defender, Miguel A. Nogueras, Samy K. Khalil, Houston, TX, for Defendant-Appellant.
    Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
   PER CURIAM:

Jose Armando Banegas-Sanchez (Bane-gas) appeals his conviction and sentence for illegal reentry following deportation. He argues that the district court plainly erred by characterizing his state felony conviction for simple possession of cocaine as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(l)(C) and 8 U.S.C. § 1101(a)(43)(B), when that same offense was punishable only as a misdemeanor under federal law. This issue, however, is foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.2002), cert. denied, 538 U.S. 1021, 123 S.Ct. 1948, 155 L.Ed.2d 864 (2003), and United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997). Therefore, Banegas has not demonstrated plain error.

Banegas also 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). He acknowledges that his argument is foreclosed, but seeks to preserve the issue for possible Supreme Court review. As Banegas concedes, this issue is foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     