                                                        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. 04-40363
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE MENDOZA-SIFUENTES,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                   USDC No. 1:03-CR-1002-ALL
                      --------------------

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

PER CURIAM:*

     Jose Mendoza-Sifuentes (Mendoza) appeals his guilty-plea

conviction and sentence for illegal reentry following deportation

in violation of 8 U.S.C. § 1326.

     For the first time on appeal, Mendoza contends that the

“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)

are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).    He also contends that Blakely v. Washington, 124

S. Ct. 2531 (2004), applies in determining his sentence.         Mendoza

acknowledges that his arguments are foreclosed, but he seeks to

     *
       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this opinion should not be published and is not precedent except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. 04-40363
                                 -2-

preserve the issues for possible Supreme Court review.   The

Government contends that Mendoza’s appeal is barred by the

appeal-waiver provision in his plea agreement.

     Mendoza’s arguments are not precluded by the terms of the

appellate-waiver provision.   Nevertheless, as Mendoza concedes,

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. 2004), 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.
