United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS December 17, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-40527 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO TORRES-AVILA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:02-CR-819-1 --------------------

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

PER CURIAM:*

Armando Torres-Avila (Torres) appeals his guilty-plea

conviction and sentence for illegal reentry after deportation.

He argues that the “felony” and “aggravated felony” provisions of

(b)(1) and (2) are unconstitutional in light of

Apprendi v. New Jersey,

(2000), and that his

sentence is improper under Blakely v. Washington,

(2004). These arguments are, as he concedes, foreclosed. See

Almendarez-Torres v. United States,

(1998); United

States v. Pineiro,

(5th Cir. 2004), petition

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40527 -2-

for cert. filed (U.S. July 14, 2004) (No. 04-5263); United States

v. Dabeit,

(5th Cir. 2000). Torres’s

conviction and sentence are AFFIRMED.