                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 6, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-20292
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MAURICIO ZELADA-HERNANDEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:03-CR-383-1
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Mauricio Zelada-Hernandez (Zelada) appeals his conviction

and sentence following his guilty-plea to fraud and misuse of an

alien registration card and illegal re-entry of an alien

previously deported after conviction of an aggravated felony.

Zelada contends that the district court plainly erred by applying

the 16-level adjustment in U.S.S.G. § 2L1.2(b)(1)(A)(i) and that

the felony and aggravated felony provisions in 8 U.S.C.

§ 1326(b)(1) & (b)(2) are unconstitutional.


     *
       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this opinion should not be published and is not precedent except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. 04-20292
                                  -2-

     Zelada received the sentence adjustment based on his prior

conviction for selling or furnishing marijuana.    Zelada did not

object to the presentence investigation report’s (PSR)

characterization of his offense, and at sentencing, his counsel

admitted that Zelada’s prior conviction was for delivery of

marijuana.   The PSR stated that, based on court records, the

conviction stemmed from Zelada’s sale of marijuana to an

undercover police officer.    Zelada does not dispute this fact,

but rather argues that his prior conviction was under CAL. HEALTH

& SAFETY CODE § 11360(a) and that a conviction under this statute

does not necessarily meet the definition of “drug trafficking

offense” under § 2L1.2(b)(1)(A)(i).    He asserts that the

Government failed to sustain its burden to prove that his prior

conviction qualified for the 16-level adjustment.    In particular,

he contends that no evidence outside of the statute of conviction

and charging instrument should have been considered in applying

the adjustment.

     We review only for plain error because this argument is

raised for the first time on appeal.    See United States v. Diaz-

Diaz, 327 F.3d 410, 412 (5th Cir.), cert. denied, 540 U.S. 889

(2003).   It was not plain error for the district court to apply

the adjustment given the information before it and the lack of

any objections or rebuttal evidence.    See United States v. Olano,

507 U.S. 725, 731-37 (1993); United States v. Ramirez, 367 F.3d

274, 277 (5th Cir.), cert. denied, 125 S. Ct. 145 (2004).
                           No. 04-20292
                                -3-

     As Zelada concedes, his assertion that the felony and

aggravated felony provisions in 8 U.S.C. § 1326(b)(1) & (b)(2)

are unconstitutional is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998).   Likewise, Zelada’s contention

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

sentence could not be enhanced based on any prior convictions

unless he admitted to them or they were found by a jury beyond a

reasonable doubt, is foreclosed by United States v. Pineiro, 377

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

14, 2004) (No. 04-5263).

     AFFIRMED.
