                                                       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. 04-40794
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE REYES ESPINOZA-CORTEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-42-ALL
                       --------------------

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

PER CURIAM:*

     Jose Reyes Espinoza-Cortez appeals his guilty-plea

conviction and sentence for illegal reentry following

deportation.   He contends that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).      He argues

that he may not be convicted and sentenced under 8 U.S.C.

§ 1326(b) because the indictment did not allege that he was

deported after a qualifying felony or aggravated felony and that


     *
       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this opinion should not be published and is not precedent except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. 04-40794
                               -2-

Blakely v. Washington, 124 S. Ct. 2531 (2004), dictates that his

sentence violates his Sixth Amendment rights.   As Espinoza-Cortez

concedes, these arguments are foreclosed.   See Almendarez-Torres

v. United States, 523 U.S. 224, 247 (1998); United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000); see also United States

v. Pineiro, 377 F.3d 464, 473 (5th Cir.), petition for cert.

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

     AFFIRMED.
