                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 20, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-41384
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OCTAVIO WITHRON-ALVAREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:03-CR-682-1
                      --------------------

Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Octavio Withron-Alvarez appeals his sentence imposed

following his guilty plea conviction for illegal reentry into the

United States following deportation.   Withron-Alvarez contends

that the sentencing enhancements in 8 U.S.C. § 1326(b) are

unconstitutional and that he should be resentenced for the lesser

included offense contained in 8 U.S.C. § 1326(a).   Withron-

Alvarez acknowledges that his arguments are foreclosed under

Almendarez-Torres v. United States, 523 U.S. 224 (1998).


     *
       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this opinion should not be published and is not precedent except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. 03-41384
                                -2-

However, he contends that if Almendarez-Torres is overruled, his

sentence should be reconsidered in light of Blakely v.

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

     Apprendi v. New Jersey, 530 U.S. 466 (2000) did not overrule

Almendarez-Torres.   See Apprendi, 530 U.S. at 489-90; see also

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

Withron-Alvarez has not demonstrated that Blakely v. Washington,

124 S. Ct. 2531 (2004) is applicable to cases arising under

Almendarez-Torres.   The sentence imposed is AFFIRMED.
