                                                       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. 04-40805
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GUADALUPE NIEVES-ALVAREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-103-ALL
                      --------------------

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

PER CURIAM:*

     Guadalupe Nieves-Alvarez ("Nieves") pleaded guilty to the

offense of being unlawfully found in the United States after

deportation subsequent to an aggravated felony, in violation of

8 U.S.C. § 1326(a) and (b).   The district court sentenced him to

46 months in prison and three years of supervised release.

     For the first time on appeal, Nieves argues that the

"felony" and "aggravated felony" provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.


     *
       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this opinion should not be published and is not precedent except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. 04-40805
                                -2-

New Jersey, 530 U.S. 466 (2000).   He concedes that his argument

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

(1998).   He also asserts that if Almendarez-Torres is overruled

and Blakely v. Washington, 124 S. Ct. 2531 (2004), is held to

apply to the federal sentencing guidelines, then the calculation

of his sentence would be unconstitutional.   Nieves's arguments

are, as he concedes, foreclosed.   See Almendarez-Torres, 523 U.S.

at 235, 239-47; 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); United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).   Nieves's conviction and sentence are AFFIRMED.
