                                                         United States Court of Appeals
                                                                  Fifth Circuit

                                                              FILED
               IN THE UNITED STATES COURT OF APPEALS       August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk

                            No. 04-50146
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SILVESTRE CUELLAR,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-03-CR-1087-1-KC
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Relying on Blakely v. Washington, 124 S. Ct. 2531 (2004),

Silvestre Cuellar argues that the district court erred by

imposing a sentence based on facts that were neither admitted nor

found by a jury beyond reasonable doubt.      The Government has

moved for summary affirmance in lieu of filing an appellee’s

brief because the issue is foreclosed in this circuit under

United States v. Pineiro, No. 03-30437, 2004 WL 1543170, at *1

(5th Cir. July 12, 2004).   The issue is indeed foreclosed.           The

     *
        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that this opinion should not be published and is not precedent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. 04-50146
                               -2-

Government’s motion is GRANTED, and the judgment of the district

court is AFFIRMED.
