United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 17, 2004

Charles R. Fulbruge III Clerk No. 04-40391 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS LOPEZ-TOVAR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-03-CR-341-1 --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Luis Lopez-Tovar (Lopez) pleaded guilty and was

convicted of illegal reentry after deportation. He was sentenced

to 30 months of imprisonment and three years of supervised

release. Lopez contends that the district court erred by

characterizing his state felony conviction for possession of

marijuana as an “aggravated felony” for purposes of U.S.S.G.

§ 2L1.2. This issue, however, is foreclosed by our precedent.

See United States v. Caicedo-Cuero,

(5th

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40391 -2-

Cir. 2002); United States v. Hinojosa-Lopez,

(5th Cir. 1997).

Lopez also argues that the “felony” and “aggravated felony”

provisions of

(a) and (b) are unconstitutional.

He acknowledges that his argument is foreclosed, but he seeks to

preserve the issue for possible Supreme Court review in light of

Apprendi v. New Jersey,

(2000). As Lopez concedes,

this issue is foreclosed. See Almendarez-Torres v. United

States,

(1998); United States v. Dabeit,

(5th Cir. 2000).

Lopez further argues that the Supreme Court’s holding in

Blakely v. Washington,

(2004), should be applied

to sentences determined under the United States Sentencing

Guidelines. As Lopez concedes, this argument is foreclosed by

this court’s recent opinion in United States v. Pineiro,

(5th Cir. 2004), petition for cert. filed (U.S. July

14, 2004) (No. 04-5263), but he raises it to preserve it for

possible further review.

AFFIRMED.