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. 04-40550 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS RAY VELA-SALINAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:03-CR-948-ALL --------------------

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

PER CURIAM:*

Luis Ray Vela-Salinas (Vela) appeals the 84-month sentence

he received following his guilty-plea conviction for unlawful

reentry of a deported alien. For the first time on appeal, Vela

argues, pursuant to Apprendi v. New Jersey,

(2000),

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

(b)(1) and (2) are elements of the offense, not sentencing

enhancements, and are unconstitutional. He concedes that this

argument is foreclosed by Almendarez-Torres v. United States, 523

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40550 -2-

U.S. 224 (1998), but raises it for possible review by the Supreme

Court.

Vela also argues that if the Supreme Court determines that

Blakely v. Washington,

(2004), applies to the

United States Sentencing Guidelines, the district court could not

enhance his sentence based on facts not admitted or found by a

jury. As he concedes, any argument based on Blakely is

foreclosed by United States v. Pineiro,

(5th

Cir. 2004), petition for cert. filed (U.S. July 14, 2004)(No. 04-

5263).

AFFIRMED.