#### UNITED STATES of America, Plaintiff-Appellee, v. George Alberto VARELA-MEDINA, Defendant-Appellant.

No. 04-40045.

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Decided Dec. 10, 2004.

James Lee Turner, Assistant U.S. Attorney, John Richard Berry, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.

Timothy William Crooks, Assistant Federal Public Defender, Marjorie A Meyers, Federal Public Defender, FEderal Public Defender’s Office, Houston, TX, for Defendant-Appellant.

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM: *

George Alberto Varela-Medina (“Varela”) appeals the sentence imposed following his guilty-plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. He argues that the district court erred in imposing a 12-point enhancement, pursuant to U.S.S.G. § 2L1.2(b)(l)(B), based on the determination that his prior felony conviction under California Health and Safety Code § 11352(a) was a “drug-trafficking offense” within the meaning of the guideline. Varela contends that the statute of conviction is overly broad, criminalizing behavior such as simple possession, and cannot support the enhancement under U.S.S.G. § 2L1.2(b)(l)(B). To the extent that Varela seeks reversal of his sentence based on a categorical rejection of a § 11352(a) offense as a “drug-trafficking offense” for purposes of U.S.S.G. § 2L1.2(b)(l)(B), his argument is without merit. *See United States v. Rodriguez-Duberney,*326 F.3d 613, 617 (5th Cir.), cert. *denied,*540 U.S. 903, 124 S.Ct. 259, 157 L.Ed.2d 187 (2003).

*961Because Varela did not object in the district court to the legal sufficiency of the PSR to sustain the enhancement, review as to this issue is for plain error only. *See United States v. Calverley,*37 F.3d 160, 162-64 (5th Cir.1994) *(en*banc). Even if the district court erred in relying on the legally inadequate PSR to sustain the enhancement, Varela cannot show that the error affected his substantial rights so as to establish plain error because the uncontested record evidence demonstrates that his prior conviction was for selling cocaine; the record lacks any evidence that he merely possessed cocaine. *Cf. United States v. Martinez-Cortez,*988 F.2d 1408, 1416 & n. 37 (5th Cir.1993).

Varela additionally contends, also for the first time on appeal, that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in the light of *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and *Blakely v. Washington,*— U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He concedes that his argument is foreclosed by *Almendarez-Torres v. United States,*523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve it for possible Supreme Court review.

*Apprendi*did not overrule *AlmendarezTorres. See Apprendi,*530 U.S. at 489-90, 120 S.Ct. 2348; *United States v. Dabeit,*231 F.3d 979, 984 (5th Cir.2000). Inasmuch as Varela argues that *Blakely*invalidates the Sentencing Guidelines, his argument is foreclosed. *See United States v. Pineiro,*377 F.3d 464, 465-66 (5th Cir. 2004), *petition for cert. filed*(July 14, 2004) (No. 04-5263).

The district court’s judgment is AFFIRMED.

*

 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.