                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-10964
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN ANTONIO MIJARES-ANDRADE,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 5:04-CR-11-ALL-C
                       --------------------

Before BARKSDALE, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Juan Antonio

Mijares-Andrade raises an admittedly foreclosed argument pursuant

to Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998)

(holding that a prior conviction is a sentencing factor under

8 U.S.C. § 1326(b)(2) and not a separate criminal offense), as

well as an argument pursuant to Blakely v. Washington, 124 S. Ct.

2531 (2004).   In light of the Supreme Court’s ruling in United

States v. Booker, 125 S. Ct. 738 (2005), Mijares-Andrade has


     *
       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this opinion should not be published and is not precedent except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. 04-10964
                               -2-

filed an unopposed motion to abandon his second point-of-error,

which raised a Blakely/Booker error.   That motion is GRANTED.

     Because the only remaining issue on appeal is foreclosed by

Almendarez-Torres, as Mijares-Andrade concedes, the Government’s

motion for summary affirmance is GRANTED, and the judgment of the

district court is AFFIRMED.
