                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40150
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ISMAEL GARCIA-NAVA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:04-CR-749-1
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Pursuant to a written agreement, Ismael Garcia-Nava pleaded

guilty to two counts of a three-count indictment, admitting that

he (1) transported an undocumented alien within the United States

by means of a motor vehicle for private financial gain in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(v)(II),

(a)(1)(B)(i); and (2) was unlawfully present in the United States

after deportation in violation of 8 U.S.C. § 1326(a), (b).        He

appeals his conviction and sentence of 37 months of imprisonment.


     *
       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this opinion should not be published and is not precedent except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. 05-40150
                                  -2-

     Garcia-Nava argues for the first time on appeal that the

district court erred in imposing a sentence under a mandatory

guidelines regime, in violation of United States v. Booker, 125

S. Ct. 738, 756-57 (2005).    He also argues that the “felony” and

“aggravated felony” provisions of § 1326(b) are unconstitutional.

We need not decide the applicability of the waiver in this case

because the issues that Garcia-Nava raises lack arguable merit or

are foreclosed.

     We review Garcia-Nava’s Booker-based challenge for plain

error.    See United States v. Martinez-Lugo, 411 F.3d 597, 600

(5th Cir.), cert. denied, 126 S. Ct. 464 (2005); United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.), cert.

denied, 126 S. Ct. 267 (2005).    Garcia-Nava concedes he cannot

establish a reasonable probability that the district court likely

would have sentenced him differently under an advisory guidelines

regime.    Therefore, he cannot establish plain error.   See

Valenzuela-Quevedo, 407 F. 3d at 733; United States v. Mares, 402

F.3d 511, 520-21 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

     He argues, for the purpose of preserving further review,

that the error is structural, or at least presumptively

prejudicial, such that he is not required to establish that his

substantial rights were affected under the third prong of the

plain-error test.    As he correctly concedes, this court has

rejected these arguments.    United States v. Malveaux, 411 F.3d

558, 561 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194 (2005).
                           No. 05-40150
                                -3-

     Garcia-Nava’s constitutional challenge to § 1326(b) is

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

235 (1998).   Although Garcia-Nava contends that Almendarez-Torres

was incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).   Garcia-Nava properly

concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

     Accordingly, the conviction and sentence are AFFIRMED.
