                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 15, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-30103
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAMIE SMITH,
also known as Papoose,
also known as Pap,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 01-CR-50070-2
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jamie Smith appeals his conviction and 360-month sentence

for conspiracy to possess with intent to distribute specified

quantities of cocaine and crack cocaine, and an unspecified

amount of marijuana and ecstasy.   He contends that his sentence

was improperly increased under Blakely v. Washington, 124 S. Ct.

2531, 2537 (2004), due to relevant-conduct drug quantity and his

role in the conspiracy, factors not specifically alleged in his


     *
       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this opinion should not be published and is not precedent except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. 04-30103
                                -2-

indictment.   As he concedes, this contention is foreclosed by

United States v. Pineiro, 377 F.3d 464, 466 (5th Cir. 2004),

petition for cert. filed, (U.S. July 14, 2004) (No. 04-5263).

     Smith also contends that his sentence was improperly

increased due to prior felony convictions that were not alleged

in his indictment.   As Smith concedes, this contention is also

foreclosed.   See Almendarez-Torres v. United States, 523 U.S. 224

(1998); Apprendi v. New Jersey, 530 U.S. 466 (2000).

     Smith contends that a $100 special assessment was wrongly

imposed on Count 24 of his indictment.    The Government concedes

that Count 24 is not a count of conviction but that it merely

advised Smith of the possibility of an increased sentence based

on a prior state felony conviction.   See 21 U.S.C. § 851; 18

U.S.C. § 3013(a).

     The judgment is AFFIRMED in all respects except for the

imposition of the $100 special assessment on Count 24.   That part

of the judgment is MODIFIED to reflect a conviction on Count 1

only and a special assessment of only $100.   Any money paid by

Smith toward the erroneous special assessment should be refunded.

     AFFIRMED IN PART; MODIFIED IN PART.
