                                                         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. 04-40315
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JUAN CARLOS RAMIREZ-SANTANA,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 5:03-CR-1545-ALL
                          --------------------

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

PER CURIAM:*

     Juan Carlos Ramirez-Santana pleaded guilty of illegal

reentry following deportation, in violation of 8 U.S.C.

§ 1326(a).     The district court sentenced him to 60 months of

imprisonment.

     For the first time on appeal, Ramirez 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.

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


     *
       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this opinion should not be published and is not precedent except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. 04-40315
                               -2-

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

charged in the indictment and proved beyond a reasonable doubt.

As Ramirez 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).

     Ramirez 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 convictions that were neither found by a

jury beyond a reasonable doubt nor admitted by him.    Ramirez

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.

     The judgment of the district court is AFFIRMED.
