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. 04-40772 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOUGLAS M. CRUZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-101-ALL --------------------

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

PER CURIAM:*

Douglas M. Cruz pleaded guilty to reentering the United

States illegally 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 a

51-month prison term and to three years of supervised release.

For the first time on appeal, Cruz argues that

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

(2000), because it does not require the fact of a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40772 -2-

prior felony or aggravated-felony conviction to be charged in the

indictment and proved beyond a reasonable doubt. As Cruz

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).

Cruz 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 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.