                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                November 9, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-20690
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE SALOMAN ARREOLA-AMAYA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:03-CR-299-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Saloman Arreola-Amaya (Arreola) appeals the sentence

imposed following his guilty-plea conviction of illegal reentry

of a previously deported alien subsequent to an aggravated felony

conviction.    Arreola argues, citing United States v. Booker,

125 S. Ct. 738 (2005), that the district court erred in

sentencing him because the court believed that the federal

sentencing guidelines were mandatory, rather than advisory.

He also contends that the “felony” and “aggravated felony”


     *
       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this opinion should not be published and is not precedent except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. 04-20690
                                 -2-

provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

unconstitutional and that Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998), should be overruled.

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

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

With respect to the district court’s mandatory application of the

sentencing guidelines, Arreola concedes that he cannot

demonstrate that the district court would have imposed a

different sentence had it considered the guidelines to be

advisory.   Accordingly, he has not established plain error in his

sentence.   See Mares, 402 F.3d at 522.

     Although the decision in Almendarez-Torres has been called

into question, see Shepard v. United States, 125 S. Ct. 1254,

1264 (2005) (Thomas, J., concurring), the Supreme Court has not

overruled it.    Accordingly, Arreola’s argument that Almendarez-

Torres should be overruled and that 8 U.S.C. § 1326(b) be

declared unconstitutional is foreclosed.     See United States v.

Rivera, 265 F.3d 310, 312 (5th Cir. 2001).

     AFFIRMED.
