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. 04-50883 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENIGNO GOMEZ-BALLESTEROS, also known as Pedro Chavez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-462-ALL-DB --------------------

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

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Benigno Gomez-

Ballesteros 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), does not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-50883 -2-

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.