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. 04-40550
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS RAY VELA-SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-948-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Luis Ray Vela-Salinas (Vela) appeals the 84-month sentence
he received following his guilty-plea conviction for unlawful
reentry of a deported alien. For the first time on appeal, Vela
argues, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000),
that the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are elements of the offense, not sentencing
enhancements, and are unconstitutional. He concedes that this
argument is foreclosed by Almendarez-Torres v. United States, 523
*
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this opinion should not be published and is not precedent except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. 04-40550
-2-
U.S. 224 (1998), but raises it for possible review by the Supreme
Court.
Vela also argues that if the Supreme Court determines that
Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the
United States Sentencing Guidelines, the district court could not
enhance his sentence based on facts not admitted or found by a
jury. As he concedes, any argument based on 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).
AFFIRMED.