                                                       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. 04-40512
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ANGEL SILVESTRE ARELLANO-RIOS,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:04-CR-50-1
                       --------------------

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

PER CURIAM:*

     Angel Silvestre Arellano-Rios pleaded guilty to being an

alien unlawfully found in the United States after deportation,

having previously been convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b).   The district court

sentenced him to serve 87 months of imprisonment and three years

of supervised release.

     For the first time on appeal, Arellano-Rios argues that the

“felony” and “aggravated felony” provisions set forth in 8 U.S.C.


     *
       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this opinion should not be published and is not precedent except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. 04-40512
                               -2-

§ 1326(b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000), because they do not require the

fact of a prior felony or aggravated felony conviction to be

charged in the indictment and proved beyond a reasonable doubt.

As Arellano-Rios concedes, his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 234-35 (1998).

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

     Arellano-Rios also argues for the first time on appeal that

if Almendarez-Torres is overruled, the Supreme Court’s holding in

Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), renders

unconstitutional the district court’s calculation of his sentence

under the United States Sentencing Guidelines based on facts

relating to his prior convictions that were neither found by a

jury beyond a reasonable doubt nor admitted by him.   Arellano-

Rios concedes that in addition to the obstacle posed by

Almendarez-Torres, his argument regarding the effect of Blakely

is foreclosed by United States v. Pineiro, 377 F.3d 464, 465-66

(5th Cir. 2004), petition for cert. filed (U.S. July 14, 2004)

(No. 04-5263), in which this court held that Blakely does not

extend to the United States Sentencing Guidelines.

     AFFIRMED.
