                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 20, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-41569
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MANUEL VILLANUEVA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:03-CR-914-01
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Manuel Villanueva appeals from his conviction of

transporting illegal aliens.   He contends that the district court

erred by adjusting his offense level based on his intentionally

or recklessly creating a substantial risk of death or serious

bodily injury, pursuant to U.S.S.G. § 2L1.1(b)(5).     Villanueva

seeks leave to file a supplemental brief in which he contends

that the adjustment violated Blakely v. Washington, 124 S. Ct.

2531 (2004), because it was based on facts that were not charged

in his indictment, were not found by a jury beyond a reasonable

     *
       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this opinion should not be published and is not precedent except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. 03-41569
                               -2-

doubt, and were not admitted by him at his plea hearing.   The

motion to file it is GRANTED.

     The district court’s finding that Villanueva had used heroin

shortly before driving was not clearly erroneous.   See United

States v. Humphrey, 104 F.3d 65, 71 (5th Cir. 1997).   Villanueva

correctly concedes that his Blakely contention is foreclosed by

United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), petition

for cert. filed (July 14, 2004) (No. 04-5263).

     AFFIRMED; MOTION GRANTED
