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. 04-50755 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR MANUEL VARELA-MARQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-247-ALL-KC --------------------

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

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Victor Manuel

Varela-Marquez raises arguments that are foreclosed by

Almendarez-Torres v. United States,

(1998),

which held that a prior conviction is a sentencing factor under

(b)(2) and not a separate criminal offense, and by

United States v. Pineiro,

(5th Cir. 2004),

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

which held that Blakely v. Washington,

(2004),

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-50755 -2-

does not apply to the United States Sentencing Guidelines. The

Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.