                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 30, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40371
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE RIVAS-MARTINEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                     USDC No. B-03-CR-853-ALL
                       --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Rivas-Martinez appeals his sentence imposed following

his guilty plea conviction for illegal reentry into the United

States following deportation.   Martinez was sentenced to a term

of imprisonment of 24 months, to be followed by a three-year term

of supervised release.   Rivas argues that the district court

plainly erred in assigning him criminal history points for his

Texas misdemeanor convictions for evading arrest and failing to

identify himself to a peace officer because they are similar to


     *
       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this opinion should not be published and is not precedent except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. 04-40371
                                  -2-

offenses listed in U.S.S.G. § 4A1.2(c)(1), which are not counted

in calculating criminal history points.

     Because Rivas filed no objections to the PSR, review is for

plain error.    See United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994) (en banc).    Rivas’s prior convictions for evading

arrest and failure to identify himself to a peace officer each

resulted in a 20-days sentence of imprisonment and were not

similar to his instant offense of conviction.       See U.S.S.G.

§ 4A1.2(c).    The offenses were similar to the offenses of

resisting arrest and providing false information to a peace

officer, which are excluded from consideration in assigning

criminal history points if the sentence imposed is for less than

one year of imprisonment.    Id.; United States v. Moore, 997 F.2d

30, 34-35 & n.6 (5th Cir. 1993); United States v. Reyes-Maya,

305 F.3d 362, 367-68 (5th Cir. 2002).       Therefore, the district

court erroneously assigned Rivas criminal history points for his

prior misdemeanor convictions for evading arrest and failure to

identify himself to a peace officer.

     Because the errors resulted in Rivas receiving a higher

sentencing guideline range, his substantial rights were affected

by the error.    See United States v. Aderholt, 87 F.3d 740, 744

(5th Cir. 1996).    Thus, the errors were plain errors warranting a

resentencing without consideration of the two additional criminal

history points based on Rivas’s prior misdemeanor convictions for
                            No. 04-40371
                                 -3-

evading arrest and failing to identify himself to a peace

officer.

       Rivas also argues that the sentencing enhancements under

8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).    He further argues that if

Blakely v. Washington, 124 S. Ct. 2531 (2004), is applied to the

federal sentencing guidelines, his sentence should be

recalculated.

       Rivas concedes that his arguments are foreclosed by

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

this court’s decision in United States v. Pineiro, 377 F.3d 464,

473 (5th Cir. 2004), petition for cert. filed, (July 14, 2004)

(No. 03-30437), but he states that he raises the issues to

preserve them for further review.

       Apprendi did not overrule Almendarez-Torres.   See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).    This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted).    Furthermore, this court has held that Blakely

does not apply to the Federal Sentencing Guidelines.     Pineiro,

377 F.3d at 473.    This argument is without merit.

       Rivas’s sentence imposed is VACATED, and the case is

REMANDED to the district court for resentencing in accordance

with this opinion.
                     No. 04-40371
                          -4-

SENTENCE VACATED; REMANDED FOR RESENTENCING.
