                                                       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. 04-50648
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GREGORY BEN,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 1:04-CR-36-1-SS
                       --------------------

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

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Gregory Ben

raises arguments that are foreclosed by United States v. Pineiro,

377 F.3d 464, 465-66 (5th Cir. 2004), petition for cert. filed

(U.S. July 14, 2004) (No. 04-5263), which held that Blakely v.

Washington, 124 S. Ct. 2531 (2004), 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.


     *
       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this opinion should not be published and is not precedent except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.
