                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 3, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-50376
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

VALENTIN HIDALGO-PERALTA,
also known as Valentine Hidalgo-Peralta;
GADIEL HIDALGO-PERALTA,
                                   Defendants-Appellants.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                   USDC No. EP-03-CR-2025-4-DB
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Court appointed counsel for Valentin Hidalgo-Peralta has

moved for leave to withdraw in accordance with Anders v.

California, 386 U.S. 738 (1967).   Hidalgo-Peralta has received a

copy of counsel’s motion and brief but has not filed a response.

     Our independent review of the record discloses one possible

nonfrivolous issue for appeal.   Hidalgo-Peralta may have an

argument that Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004)

invalidates his sentence.   However, Hidalgo-Peralta’s sentence


     *
       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this opinion should not be published and is not precedent except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. 04-50376
                                -2-

was based on the statutory minimum sentence, not the Federal

Sentencing Guidelines, and this court has held that Blakely does

not apply to the Federal Sentencing Guidelines.   United States v.

Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), petition for cert.

filed (July 14, 2004).   Nonetheless, counsel could have raised a

potential Blakely issue to preserve it for Supreme Court review.

See McKnight v. General Motors Corp., 511 U.S. 659, 660 (1994).

     Because our independent review of the record has revealed

this possible nonfrivolous issue for appeal, we deny counsel’s

motion to withdraw.   By denying the motion to withdraw, Hidalgo-

Peralta has preserved the Blakely issue for further review.    We

pretermit further briefing, however, in light of Pineiro, and

AFFIRM the judgment of the district court.

     Accordingly, counsel’s motion for leave to withdraw is

DENIED, and the judgment of the district court is AFFIRMED.
