                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 5, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-50104
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE LUIS PEREZ-ISLAS,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. 3:04-CR-1775-ALL-KC
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Luis Perez-Islas appeals his sentence following his

guilty-plea conviction for illegal reentry by an alien.         Perez-

Islas argues that the district court plainly erred in sentencing

him under mandatory Sentencing Guidelines under United States v.

Booker, 125 S. Ct. 738 (2005).    As Perez-Islas concedes, we

review for plain error.     See United States v. Mares, 402 F.3d

511, 513 (5th Cir. 2005), petition for cert. filed, (Mar. 31,

2005) (No. 04-9517).     Here, the district court erred by imposing


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this opinion should not be published and is not precedent except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

a sentence pursuant to a mandatory application of the sentencing

guidelines.   See Booker, 125 S. Ct. at 768; see also Mares,

402 F.3d at 520-21 & n.9.   However, Perez-Islas cannot establish

that this error affected his substantial rights.    United States

v. Olano, 507 U.S. 725, 734 (1993).   Because Perez-Islas has not

shown that his sentence likely would have been different, his

Booker argument fails.   See Mares, 402 F.3d at 521.

     Perez-Islas argues that the district court plainly erred in

relying on the modified presentence report (PSR) in enhancing his

sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) by 16 levels for a

prior removal after a conviction of a “crime of violence” based

on his prior Texas conviction for aggravated robbery.       We review

for plain error.   See United States v. Villegas, 404 F.3d 355,

356 (5th Cir. 2005).

     The district court was not permitted to rely on the

characterization of the prior offense in the modified PSR in

order to enhance Perez-Islas’s sentence.   See United States v.

Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).    However, the

statutory definition of Perez-Islas’s prior conviction falls

within U.S.S.G. § 2L1.2’s definition of the type of crime for

which the enhancement is warranted.   See TEX. PENAL CODE

§ 29.03(a); U.S.S.G. § 2L1.2, comment. (n.(1)(B)(iii)).      Robbery

is a specifically enumerated “crime of violence” for enhancement

purposes under U.S.S.G. § 2L1.2.   See U.S.S.G. § 2L1.2, comment.

(n.(1)(B)(iii)).   Assuming that the district court did rely on
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                                  -3-

the modified PSR’s characterization of Perez-Islas’s prior

offense, such error did not affect Perez-Islas’s substantial

rights because the statutory definition of the crime places it

squarely within the definition of “crime of violence” under

U.S.S.G. § 2L1.2.     Cf. Garza-Lopez, 410 F.3d at 273-75.

     Finally, Perez-Islas argues that the indictment did not

charge him with an offense under 8 U.S.C. § 1326(b) because it

did not charge him with having a prior conviction for an

aggravated felony.    Perez-Islas concedes that his argument is

foreclosed under Almendarez-Torres v. United States, 523 U.S. 224

(1998), but states that he raises it to preserve it for possible

Supreme Court review because of the Court’s decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000).

     Apprendi did not overrule Almendarez-Torres.      See Apprendi,

530 U.S. at 489-90.    We must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.”     United States v. Mancia-Perez,

331 F.3d 464, 470 (5th Cir.) (quotation marks and citation

omitted), cert. denied, 540 U.S. 935 (2003).     Therefore, Perez-

Islas’s argument must fail.     See id.   The judgment of the

district court is AFFIRMED.
