                                                        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. 04-40731
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MARTIN ENRIQUE BERNAL-ISLER,
also known as Jose Enrique Bernal,

                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 7:03-CR-1051-1
                        --------------------

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

PER CURIAM:*

     Martin Enrique Bernal-Isler (Bernal) appeals from his

sentence imposed on a guilty-plea conviction for illegal

re-entry.   The district court imposed a 77-month term of

imprisonment followed by a two-year term of supervised release.

     For the first time on appeal, Bernal 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).    As Bernal concedes, this issue is foreclosed.

     *
       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this opinion should not be published and is not precedent except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. 04-40731
                                -2-

See Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998);

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

     Bernal further argues that the Supreme Court’s holding in

Blakely v. Washington, 124 S. Ct. 2531 (2004), should be applied

to sentences determined under the federal sentencing guidelines.

As Bernal also concedes, this argument is foreclosed by our

opinion in United States v. Pineiro, 377 F.3d 464, 473 (5th Cir.

2004), petition for cert. filed (U.S. July 14, 2004) (No.

04-5263), but he raises it to preserve it for possible further

review.   Accordingly, the sentence of the district court is

AFFIRMED.
