                                                       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. 04-40409
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JULIO CESAR VASQUEZ-ALEJOS, also known as Andre Maya-Galvan,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-898-ALL
                      --------------------

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

PER CURIAM:*

     Julio Cesar Vasquez-Alejos appeals his guilty-plea

conviction and sentence for being found unlawfully present in the

United States after deportation, following an aggravated felony,

pursuant to 8 U.S.C. § 1326(a) and (b).   Vasquez-Alejos argues,

pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), that the

“felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are elements of the offense, not sentence

enhancements, making those provisions unconstitutional.       He


     *
       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this opinion should not be published and is not precedent except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. 04-40409
                                -2-

concedes that this argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), but he raises it for possible

review by the Supreme Court.     See United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000).

     Vasquez-Alejos asserts that if Almendarez-Torres is

overturned and the decision in Blakely v. Washington, 124 S. Ct.

2531 (2004), is held to apply to federal sentencing guidelines,

then his sentence could not be based on facts not admitted by him

or found by a jury.   This argument is foreclosed by 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).

     AFFIRMED.
