Jamie Smith appeals his conviction and 360-month sentence for conspiracy to possess with intent to distribute specified quantities of cocaine and crack cocaine, and an unspecified amount of marijuana and ecstasy. He contends that his sentence was improperly increased under Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), due to relevant-conduct drug quantity and his role in the conspiracy, factors not specifically alleged in his indictment. As he concedes, this contention is foreclosed by United States v. Pineiro, 377 F.3d 464, 466 (5th Cir. 2004), petition for cert. filed, (U.S. July 14, 2004) (No. 04-5263).

Smith also contends that his sentence was improperly increased due to prior felony convictions that were not alleged in his indictment. As Smith concedes, this contention is also foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Smith contends that a $100 special assessment was wrongly imposed on Count 24 of his indictment. The Government concedes that Count 24 is not a count of conviction but that it merely advised Smith of the possibility of an increased sentence based on a prior state felony conviction. See 21 U.S.C. § 851; 18 U.S.C. § 3013(a).

The judgment is AFFIRMED in all respects except for the imposition of the $100 special assessment on Count 24. That part of the judgment is MODIFIED to reflect a conviction on Count 1 only and a special assessment of only $100. Any money paid by Smith toward the erroneous special assessment should be refunded.

AFFIRMED IN PART; MODIFIED IN PART.