                                                       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. 04-40155
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MIGUEL VACA-HERNANDEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:03-CR-1201-1
                       --------------------

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

PER CURIAM:*

     Miguel Vaca-Hernandez pleaded guilty to violating 8 U.S.C.

§ 1326(a) and (b) by being found in the United States, without

permission, following his deportation.   The district court

sentenced him to serve 84 months of imprisonment and three years

of supervised release.

     For the first time on appeal, Vaca-Hernandez argues that the

“felony” and “aggravated felony” provisions set forth in 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.


     *
       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this opinion should not be published and is not precedent except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. 04-40155
                               -2-

New Jersey, 530 U.S. 466, 490 (2000), because they do not require

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

charged in the indictment and proved beyond a reasonable doubt.

As Vaca-Hernandez concedes, his argument is foreclosed by

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

See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

     Vaca-Hernandez also argues for the first time on appeal that

if Almendarez-Torres is overruled, the Supreme Court’s holding in

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

unconstitutional the district court’s calculation of his sentence

under the United States Sentencing Guidelines based on facts

relating to his prior conviction that were neither found by a

jury beyond a reasonable doubt nor admitted by him.   Vaca-

Hernandez concedes that in addition to the obstacle posed by

Almendarez-Torres, his 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

extend to the United States Sentencing Guidelines.

     AFFIRMED.
