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. 04-40558 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HUMBERTO LOPEZ-CRUZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-44-ALL --------------------

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

PER CURIAM:*

Humberto Lopez-Cruz (“Lopez”) pleaded guilty to illegally

re-entering the United States after having been deported and

after having been convicted of an “aggravated felony,” a

violation of

(a) and (b). The district court

sentenced him to 66 months in prison and to three years of

supervised release.

For the first time on appeal, Lopez argues that

(b) is unconstitutional under Apprendi v. New Jersey, 530

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40558 -2-

U.S. 466 (2000), because it does not require the fact of a prior

felony or aggravated-felony conviction to be charged in the

indictment and proved beyond a reasonable doubt. As Lopez

concedes, this argument is foreclosed by Almendarez-Torres v.

United States,

(1998), and Almendarez-Torres was not

overruled by Apprendi. See United States v. Dabeit,

(5th Cir. 2000).

Lopez also argues that the Supreme Court’s holding in

Blakely v. Washington,

(2004), should be applied

to sentences determined under the United States Sentencing

Guidelines. He concedes that 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.