                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 2, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41187
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAFAEL CASTILLO-RESENDEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-391-ALL
                      --------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Rafael Castillo-Resendez appeals the sentence imposed

following his guilty plea to illegal reentry.    We affirm.

     Castillo argues for the first time on appeal that the

district court erred in sentencing him under the mandatory

Sentencing Guideline regime held unconstitutional in United

States v. Booker, 125 S. Ct. 738 (2005).    Castillo, however, has

not borne his burden of establishing that the district court’s

error affected the outcome of his proceedings.    See United States


     *
       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this opinion should not be published and is not precedent except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. 04-41187
                                  -2-

v. Valenzuela-Quevedo, No. 03-41754, 2005 WL 941353, at *3 (5th

Cir. Apr. 25, 2005).    The district court considered but denied

Castillo’s motion for a downward departure based on the violent

nature of his aggravated assault conviction.     The record does

not indicate that the district court would have imposed a

“significantly different” sentence under an advisory scheme.

See United States v. Mares, 402 F.3d 511, 521 (5th Cir. Mar. 4,

2005), petition for cert. filed, (No. 04-9517 (U.S. Mar. 31,

2005).   Castillo therefore has not shown plain error.

     Castillo concedes that the issue whether 8 U.S.C.

§ 1326(b)(1)&(2) were rendered unconstitutional by Apprendi v.

New Jersey, 530 U.S. 466 (2000), and subsequent Supreme Court

precedent is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998), and he raises it solely to preserve its

further review by the Supreme Court.     Apprendi did not overrule

Almendarez-Torres.     See Apprendi, 530 U.S. at 489-90; United

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

therefore must follow Almendarez-Torres “unless and until the

Supreme Court itself determines to overrule it.”     Dabeit,

231 F.3d at 984 (internal quotation marks and citation omitted).

     AFFIRMED.
