                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 17, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41161
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LEONARDO RAMIREZ-OROZCO,
also known as Paul Jacob Ramirez,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:03-CR-1135-ALL
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Leonardo Ramirez-Orozco (“Ramirez”) appeals his 57-month

sentence imposed following his guilty-plea conviction for

attempted illegal reentry into the United States after having

been previously deported.   For the first time on appeal, Ramirez

argues that his sentence is unconstitutional, in light of United

States v. Booker, 125 S. Ct. 738 (2005), because his sentence was

increased based upon facts that he did not admit.   Specifically,

he contends that the district court’s determination, pursuant 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this opinion should not be published and is not precedent except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. 04-41161
                                 -2-

U.S.S.G. § 4A1.1(d), that he was on parole at the time he

committed the instant offense violated his Sixth Amendment

rights.   He further contends that his sentence is

unconstitutional because it was imposed pursuant to a mandatory

application of the sentencing guidelines.

     We review for plain error.     See United States v. Mares, 402

F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517); United States v. Valenzuela-Quevedo, 407

F.3d 728, 732 (5th Cir. 2005), petition for cert. filed (July 25,

2005) (No. 05-5556).    Ramirez’s argument that the Booker errors

are structural and insusceptible of harmless error analysis has

been rejected by this court.    See United States v. Martinez-Lugo,

411 F.3d 597, 601 (5th Cir. 2005).    Ramirez’s alternative

argument that any Booker error should be presumed prejudicial has

also been rejected by this court.    Id.   Thus, Ramirez must show:

(1) an error; (2) that is clear or plain; (3) that affected his

substantial rights; and (4) that seriously affected the fairness,

integrity or public reputation of his judicial proceedings.

United States v. Olano, 507 U.S. 725, 732-35 (1993).

     Ramirez makes no showing that the district court would

likely have sentenced him differently under the Booker advisory

scheme.   Similarly, there is no indication from the court’s

remarks at sentencing that the court would have reached a

different conclusion.   Thus, Ramirez has not demonstrated that

his substantial rights were affected, and he has thus failed to
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                                -3-

carry his burden under plain-error review.   See Mares, 402 F.3d

at 521-22; Valenzuela-Quevedo, 407 F.3d at 733-34.

     As he concedes, Ramirez’s argument that the sentencing

provisions of 8 U.S.C. § 1326(b) are unconstitutional is

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

(1998).   See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

     AFFIRMED.
