                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 16, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-20151
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

AGUSTIN CARRILLO-BANUELOS,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 4:03-CR-236-ALL
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Agustin Carrillo-Banuelos pleaded guilty to unlawful reentry

of a deported alien in violation of § 1326(a) and (b)(2), and was

sentenced to 70 months of imprisonment to be followed by three

years of supervised release.   The district court imposed the

condition of supervised release that Carrillo-Banuelos “shall not

possess a firearm, destructive device, or any other dangerous

weapon.”   Carrillo-Banuelos argues that this condition must be

vacated because it is vague and overbroad.


     *
       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this opinion should not be published and is not precedent except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. 04-20151
                                -2-

     Conditions of probation must be written and read in a

“commonsense way.”   United States v. Paul, 274 F.3d 155, 167 (5th

Cir. 2001).   A commonsense reading of the condition requires that

the intent to cause harm be present before an instrument which is

not dangerous when used in its customary manner may be found to

be a dangerous weapon.   Carrillo-Banuelos has not shown that the

district court erred by imposing the condition.

     For the first time on appeal, Carrillo-Banuelos argues,

pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are elements of the offense, not sentence

enhancements, making those provisions unconstitutional.   He

concedes that this argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), but raises it for possible

review by the Supreme Court.

     Carrillo-Banuelos also argues that his sentence violates

Blakely v. Washington, 124 S. Ct. 2531 (2004), because it is

based on facts not admitted or found by a jury.   As he concedes,

this argument is foreclosed by United States v. Pineiro, 377 F.3d

464, 465-66 (5th Cir.), petition for cert. filed, (July 14, 2004)

(No. 04-5263).

     AFFIRMED.
