                                                       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. 04-40434
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

CARLOS ANDRES SAUZO-IZAGUIRRE,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:03-CR-1682-1
                      --------------------

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

PER CURIAM:*

     Carlos Andres Sauzo-Izaguirre (“Sauzo”) pleaded guilty to

one count of illegal reentry into the United States.     Sauzo

argues that the district court erred by characterizing his state

felony conviction for possession of a controlled substance as an

“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C),

because that same offense is punishable only as a misdemeanor

under federal law.   This issue, however, is foreclosed.      See

United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.

2002); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th


     *
       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this opinion should not be published and is not precedent except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. 04-40434
                                -2-

Cir. 1997).   Thus, Sauzo fails to show that the district court

erred by characterizing his state conviction as an aggravated

felony for U.S.S.G. § 2L1.2(b)(1)(C) purposes and by sentencing

him accordingly.

     Sauzo argues that 8 U.S.C. § 1326(b) is unconstitutional on

its face and as applied in his case because it does not require

the fact of a prior felony or aggravated felony conviction to be

charged in the indictment and proved beyond a reasonable doubt.

This argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998).   See United States v. Dabeit,

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

     Sauzo also argues that, if Almendarez-Torres is overruled

and if Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to

the federal sentencing guidelines, the district court violated

his right to a trial by jury by enhancing his sentence based on

his prior convictions, which were not submitted to a jury or

admitted by Sauzo.   In addition to the obstacle posed by

Almendarez-Torres, Sauzo’s argument regarding the effect of

Blakely 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), in which this court held that Blakely does

not apply to the federal sentencing guidelines.

     The judgment of the district court is AFFIRMED.   `
