                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 12, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40743
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FIDEL DIAZ-PEREZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-57-ALL
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Fidel Diaz-Perez (“Diaz”) appeals his 63-month sentence

imposed following his guilty plea to being unlawfully present in

the United States following deportation.    Diaz argues that his

sentence is unconstitutional, in light of United States v.

Booker, 125 S. Ct. 738 (2005), because he was sentenced under a

mandatory guideline scheme.   He further argues that the

enhancement provisions of 8 U.S.C. § 1326(a) and (b) are

unconstitutional.


     *
       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this opinion should not be published and is not precedent except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. 04-40743
                                -2-

     Pursuant to his plea agreement, Diaz waived the right to

appeal his sentence or the manner in which it was imposed, except

for a sentence above the statutory maximum or an upward departure

from the applicable guideline range.   The transcript of the plea

hearing reflects that the magistrate judge erroneously advised

Diaz that he could “still appeal for an illegal sentence.”    This

statement inaccurately described the waiver-of-appeal provision

contained in Diaz’s plea agreement.    Thus, it cannot be said that

Diaz knowingly and voluntarily waived the right to appeal his

sentence.   See United States v. Robinson, 187 F.3d 516, 517 (5th

Cir. 1999).   Therefore, Diaz’s appeal waiver does not bar the

instant appeal.   Id.

     Diaz’s assertion that the district court’s application of

the guidelines as mandatory is “structural and insusceptible of

harmless error analysis” or, alternatively, that the error is

presumptively prejudicial has been rejected by this court.    See

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

2005); United States v. Malveaux, 411 F.3d 558, 560-61 n.9 (5th

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

5297).   We review Diaz’s Booker-based argument for plain error.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33

(5th Cir. 2005), petition for cert. filed, (July 25, 2005) (No.

05-5556).   The district court committed error that is plain when

it sentenced Diaz under a mandatory guideline scheme.    See id. at

733; Martinez-Lugo, 411 F.3d at 600.    Diaz, however, fails to
                           No. 04-40743
                                -3-

meet his burden of showing that the district court’s error

affected his substantial rights.   See Valenzuela-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, 317-18

n.4 (5th Cir. 2005), petition for cert. filed, (July 26, 2005)

(No. 05-5535).

     As he concedes, Diaz’s argument that the sentencing

provisions in 8 U.S.C. § 1326(a) and (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).

Accordingly, Diaz’s sentence is AFFIRMED.
