                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                           May 6, 2004

                                                              Charles R. Fulbruge III
                                                                      Clerk
                             No. 03-40984
                           Summary Calendar


                      UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

    LUIS ANTONIO ANDRADE, also known as Marco Guerraro-Perez,

                                                    Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Texas
                           (B-03-CR-117-1)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Luis   Antonio   Andrade    pleaded   guilty   to   illegal   re-entry

subsequent to an aggravated felony conviction, in violation of 8

U.S.C. § 1326(a) and (b).       He presents two issues.

     Andrade contends the district court committed reversible error

by assessing 11 criminal history points for crimes committed when,

according to Andrade, he was only 17 years of age, instead of over

18 as found by the district court.         See U.S.S.G. § 4A1.2(d).        In

examining the sentence imposed, our court reviews the district



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this opinion should not be published and is not precedent except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

court’s application of the sentencing guidelines de novo; its

factual findings, only for clear error.    E.g., United States v.

Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, 510 U.S. 949

(1993).

     The district court’s reliance on Andrade’s date of birth as

stated in the presentence investigation report (PSR) is plausible

in the light of the record as a whole, United States v. Huerta, 182

F.3d 361, 364 (5th Cir. 1999); and Andrade has failed to show that

the date of birth stated in the PSR was materially untrue.    United

States v. Vela, 927 F.2d 197, 201 (5th Cir.), cert. denied, 502

U.S. 875 (1991). Therefore, the district court did not clearly err

in relying on Andrade’s date of birth as stated in the PSR.

     Andrade further challenges his conviction on the ground that

the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326-

(b)(1) and (2) are unconstitutional under Apprendi v. New Jersey,

530 U.S. 466 (2000).    Andrade acknowledges that this issue is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998); he presents it to preserve it for further review.

                                                       AFFIRMED




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