                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                              F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                              January 26, 2005
                                   FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                            No. 04-20545
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                         Plaintiff-
                                                          Appellee,

                                                 versus


JESUS ROBERTO FLORES-GUZMAN,

                                                                                       Defendant-
                                                          Appellant.


                       -------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                    USDC No. 4:03-CR-439-ALL
                       -------------------------------------------------------------

Before WIENER, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

       Jesus Roberto Flores-Guzman (Flores-Guzman) appeals his guilty-plea convicti on and sentence

for illegal reentry following deportation in violation of 8 U.S.C. § 1326.




       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       For the first time on appeal, Flores-Guzman contends that the “felony” and “aggravated fel ony”

provisions of 8 U.S.C.

§ 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He also

contends that Blakely v. Washington, 124 S. Ct. 2531 (2004), applies in determining his sentence.

Flores-Guzman acknowledges that his arguments are foreclosed, but he seeks to preserve the issues

for possible Supreme Court review.

       As Flores-Guzman concedes, his arguments are foreclosed. See Almendarez-Torres v. United

States, 523 U.S. 224, 247 (1998).

       Also for the first time on appeal, Flores-Guzman contends that the district court plainly erred

in prohibiting him from “drinking or using any addictive substances” as a special condition of his

supervised release. Because the special condition is not reasonably related to the nature of the

offense or Flores-Guzman’s characteristics and involves a greater deprivation of liberty than is

reasonably necessary to deter criminal conduct, protect the public, and provide Flores-Guzman with

necessary treatment, we agree that the district court plainly erred in prohibiting Flores-Guzman from

“drinking or using any addictive substances” during his supervised release. See United States v.

Ferguson, 369 F.3d 847, 853-54 (5th Cir. 2004). Accordingly, we VACATE the sentence in part and

REMAND for the district court to modify the special conditions of Flores-Guzman’s supervised

release in a manner consistent with this opinion.

       AFFIRMED IN PART. VACATED AND REMANDED IN PART.




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