                                                       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. 04-40648
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ELIAS GUTIERREZ-SUAREZ,
                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:04-CR-18-ALL
                       --------------------

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

PER CURIAM:*

     Elias Gutierrez-Suarez appeals his guilty-plea conviction

and sentence for being found illegally present in the United

States after deportation pursuant to 8 U.S.C. § 1326(a) and (b).

Gutierrez-Suarez 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), and

     *
       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this opinion should not be published and is not precedent except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. 04-40648
                                -2-

by prior Fifth Circuit precedent, United States v. Barrera-

Saucedo, 385 F.3d 533, 537 (5th Cir. 2004).   He raises the

argument for possible review by the Supreme Court.

     Gutierrez-Suarez also argues that after the Supreme Court’s

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), his

sentence could not be enhanced under the Federal Sentencing

Guidelines on the basis of the fact of his prior conviction

unless that fact was found by a jury beyond a reasonable doubt or

admitted by him.   He concedes that this court’s opinion in United

States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), petition for

cert. filed (July 14, 2004) (No. 04-5263 ), forecloses this

issue, and he raises it solely to preserve the issue for further

review.   This court has held that Blakely does not apply to the

Federal Sentencing Guidelines.   Pineiro, 377 F.3d at 473.

     AFFIRMED.
