                                                       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. 04-40868
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

HUGO ALBERTO ARVIZU-GARCIA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-194-ALL
                      --------------------

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

PER CURIAM:*

     Hugo Alberto Arvizu-Garcia appeals the sentence imposed

following his illegal reentry conviction.     He argues for the

first time on appeal that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional

in light of Apprendi v. New Jersey 530 U.S. 466 (2000) and

Blakely v. Washington, 124 S. Ct. 2531 (2004).     He concedes that

the issue is foreclosed but seeks its preservation for possible

Supreme Court review.


     *
       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this opinion should not be published and is not precedent except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. 04-40868
                               -2-

     Arvizu’s arguments are not precluded by the terms of his

appeal waiver; nevertheless, his arguments are foreclosed.   See

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

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

for cert. filed (U.S. July 14, 2004) (No. 04-5263); United States

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

     AFFIRMED.
