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. 04-40649 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR CANTU-RIOS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:03-CR-1073 --------------------

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

PER CURIAM:*

Oscar Cantu-Rios pleaded guilty to violating

(a) and (b) by being found in the United States, without

permission, following his conviction of an aggravated felony and

subsequent deportation. The district court sentenced him to

serve 46 months of imprisonment and two years of supervised

release.

For the first time on appeal, Cantu-Rios argues that the

“felony” and “aggravated felony” provisions set forth in 8 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40649 -2-

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.

New Jersey,

(2000), because they do 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 Cantu-Rios concedes, his argument is foreclosed by

Almendarez-Torres v. United States,

(1998).

See United States v. Dabeit,

(5th Cir. 2000).

Cantu-Rios also argues for the first time on appeal that if

Almendarez-Torres is overruled, the Supreme Court’s holding in

Blakely v. Washington,

(2004), renders

unconstitutional the district court’s calculation of his sentence

under the United States Sentencing Guidelines based on facts

relating to his prior convictions that were neither found by a

jury beyond a reasonable doubt nor admitted by him. Cantu-Rios

concedes that in addition to the obstacle posed by

Almendarez-Torres, his argument regarding the effect of Blakely

is foreclosed by United States v. Pineiro,

(5th Cir. 2004), petition for cert. filed (U.S. July 14, 2004)

(No. 04-5263), in which this court held that Blakely does not

extend to the United States Sentencing Guidelines.

The judgment of the district court is AFFIRMED.