                                                       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. 04-40154
                        Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LUCIA DEL CARMEN ORTIZ-DE BADILLO,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:03-CR-1213-1
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Lucia Del Carmen Ortiz-De Badillo appeals from her guilty-

plea conviction for illegal reentry following deportation.

Ortiz-De Badillo argues that the district court erred by relying

on the presentence report to determine that her prior conviction

for alien smuggling was committed for profit.   Ortiz-De Badillo

concedes that this issue is foreclosed by United States v.

Sanchez-Garcia, 319 F.3d 677 (5th Cir. 2003).

     Ortiz-De Badillo argues that the district court erred when

it applied U.S.S.G. § 2L1.2(b)(1)(A) because transportation of

     *
       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this opinion should not be published and is not precedent except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. 04-40154
                                -2-

illegal aliens is not “alien smuggling.”   Ortiz-De Badillo

concedes that this argument is foreclosed by United States v.

Solis-Campozano, 312 F.3d 164 (5th Cir. 2002).

     For the first time on appeal, Ortiz-De Badillo argues that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).    Ortiz-De Badillo concedes that this

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998).   See United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).

     Also for the first time on appeal, Ortiz-De Badillo argues

that the district court erred in sentencing her under a mandatory

sentencing guidelines scheme.    See United States v. Booker, 125

S. Ct. 738, 756 (2005).   Ortiz-De Badillo acknowledges that this

argument is reviewed for plain error, but argues that she does

not have to show that the district court’s error affected her

substantial rights because the error is structural and because

prejudice should be presumed.

     Plain error is the correct standard of review.    See United

States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),

petition for cert. filed (July 11, 2005) (No. 05-5297).    The

district court committed error that is plain when it sentenced

Ortiz-De Badillo under a mandatory sentencing guidelines regime.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th

Cir. 2005), petition for cert. filed (July 25, 2005) (No. 05-
                           No. 04-40154
                                -3-

5556); United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th

Cir. 2005).   Ortiz-De Badillo fails to meet her burden of showing

that the district court’s error affected her substantial rights.

See Valenzeuela-Quevedo, 407 F.3d at 733-34; United States v.

Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517); see also United States v.

Bringier, 405 F.3d 310, 317 n.4 (5th Cir. 2005), petition for

cert. filed (July 26, 2005)(No. 05-5535).

     AFFIRMED.
