                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 22, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-50710
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN PEDRO HIPOLITO-TREVINO,

                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                      USDC No. 2:03-CR-851-1-WWJ
                         --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Juan Pedro Hipolito-Trevino (Hipolito) appeals the 41-month

sentence he received after pleading guilty to one count of

illegal reentry into the United States after having been

deported.   See 8 U.S.C. § 1326.

     Hipolito contends that his sentence violated due process and

should have been limited to two years because his indictment

failed to allege the prior drug-trafficking conviction.       As he




     *
       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this opinion should not be published and is not precedent except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. 04-50710
                                  -2-

concedes, this contention is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998).

     Hipolito also contends that he is entitled to resentencing

because the district court sentenced him under a mandatory

application of the guidelines that has been prohibited by United

States v. Booker, 125 S. Ct. 738, 756-57, 769 (2005).    Because

Hipolito did not raise this issue in the district court, we

review for plain error.     United States v. Valenzuela-Quevedo, 407

F.3d 728, 732 (5th Cir. 2005).    Although there was an error under

Booker, Hipolito fails to demonstrate that the district court

would have imposed a different sentence under advisory

guidelines.   Id. at 733.   He therefore fails to show that the

error affected his substantial rights as is necessary under the

plain-error standard.     See id.; United States v. Mares, 402 F.3d

511, 521-22 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517).

     The judgment of the district court is AFFIRMED.
