United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 15, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40374
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN LUIS MADRAZO-CONSTANTE,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-870-ALL
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Juan Luis Madrazo-Constante (“Madrazo-Constante”) pleaded

guilty to the charge of illegal reentry after deportation, a

violation of 8 U.S.C. §§ 1326(a) and (b).   He appeals his

sentence, arguing that the district court erred in applying a 16-

level increase to his offense level on the ground that he had

been previously convicted of a drug trafficking offense.

Madrazo-Constante contends that in his prior criminal case, the

Georgia indictment charged him with possessing cocaine with


     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-40374
                                 -2-

intent to distribute and the lesser included offense of simple

possession of cocaine.    He asserts that he could have been

convicted under Georgia criminal procedure rules of the lesser

charge of simple possession, which does not constitute a drug

trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i).

     He also asserts that this conviction for “simple possession”

does not constitute an “aggravated felony” under U.S.S.G.

§ 2L1.2(b)(1)(C), and therefore, an eight-level increase is not

warranted.    He contends that the district court should have

increased his offense level under U.S.S.G. § 2L1.2(b)(1)(D),

because his prior conviction constitutes “any other felony” under

the United States Sentencing Guidelines.

     The indictment and judgment relied upon by the district

court reflected that Madrazo-Constante pleaded guilty to Count 2

of the Georgia indictment which charged him with possession “with

the intent to distribute and have under their control, cocaine.”

In the absence of any evidence to the contrary, the preponderance

of the evidence supported the assessment of the sentencing

adjustment.    See United States v. Alfaro, 

, 965 (5th

Cir. 1990).    The district court did not err in imposing a 16-

level adjustment for a felony drug trafficking offense.    Madrazo-

Constante’s argument that his prior conviction does not

constitute an “aggravated felony” for an eight-level adjustment

under U.S.S.G. § 2L1.2(b)(1)(C) is foreclosed by this court’s

binding decisions.    See United States v. Caicedo-Cuero, 312 F.3d
                          No. 04-40374
                               -3-

697 (5th Cir. 2002, cert. denied, 

(2003); United

States v. Hinojosa-Lopez, 

, 693-94 (5th Cir. 1997).

     As conceded by Madrazo-Constante, his argument that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.

New Jersey, 

(2000), is foreclosed by Almendarez-

Torres v. United States, 

, 235 (1998).

     AFFIRMED.