
    UNITED STATES of America, Plaintiff-Appellee, v. Jesus Donaldo ESPINOSA-HERNANDEZ, also known as Ronnie Espinosa, Defendant-Appellant.
    No. 03-40808.
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Dec. 10, 2003.
    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, Molly E. Odom, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
   PER CURIAM.

Jesus Donaldo Espinosa-Hernandez appeals his guilty plea conviction of being found in the United States without permission after having been removed. He argues for the first time on appeal that the felony conviction that resulted in his increased sentence under 8 U.S.C. § 1326(b)(2) was an element of the offense that should have been charged in the indictment and that 8 U.S.C. § 1326(b)’s felony and aggravated felony provisions are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As he acknowledges, his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See 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       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     