                                                       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. 04-40686
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CARLOS PEREZ-TOSTADO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-894-ALL
                       --------------------

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

PER CURIAM:*

     Carlos Perez-Tostado 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, Perez-Tostado 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


     *
        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that this opinion should not be published and is not precedent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. 04-40686
                                -2-

sentence.   Perez-Tostado acknowledges that his arguments are

foreclosed, but he seeks to preserve the issues for possible

Supreme Court review.

     Perez-Tostado’s arguments are not precluded by the terms of

the appellate-waiver provision.   Nevertheless, as Perez-Tostado

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.
