                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS    December 16, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 04-10188
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERT WAYNE MONTGOMERY,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 6:03-CR-32-ALL-C
                        --------------------

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

PER CURIAM:*

     Robert Wayne Montgomery appeals the sentence he received

after he pleaded guilty to being a felon in possession of a

firearm.   Montgomery argues that, because the gun was not loaded

and evidence of drug dealing or drug-related activities was not

present, the district court erred when it increased his base

offense level under U.S.S.G. § 2K2.1(b)(5).   Inasmuch as

Montgomery does not contest that he had a prior felony or that he

possessed a firearm in a bag with cocaine, his argument is


     *
       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this opinion should not be published and is not precedent except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. 04-10188
                                -2-

unavailing.   See United States v. Condren, 18 F.3d 1190, 1199-

2000 (5th Cir. 1994); United States v. Washington, 340 F.3d 222,

231 (5th Cir.), cert. denied, 124 S. Ct. 942 (2003).

     Montgomery’s argument that the district court committed

plain error when it enhanced his sentence based on facts not

alleged in the indictment, proven to a jury, or proven beyond a

reasonable doubt, in violation of Blakely v. Washington, 124

S. Ct. 2531 (2004), is foreclosed.   See United States v. Pineiro,

377 F.3d 464, 465-66 (5th Cir. 2004), petition for cert. filed

(U.S. July 14, 2004)(No. 04-5263).

     Montgomery’s sentence is AFFIRMED.
