                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               05IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  August 17, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40883
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ELMER IVAN GARTH DAVINSON-CANALES,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-207-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Elmer Ivan Davinson-Canales appeals his sentence imposed

following his guilty plea conviction for illegal reentry

following deportation.   He argues that, if Almendarez-Torres v.

United States, 523 U.S. 224 (1998) is overruled, his sentence

imposed under 8 U.S.C. § 1326(b) would be unconstitutional and he

would be entitled to be resentenced to the penalty for a lesser

included offense.   Davinson correctly acknowledges that

Almendarez-Torres has not been overruled and that this argument


     *
       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this opinion should not be published and is not precedent except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. 04-40883
                                -2-

is foreclosed, but he seeks to preserve the issue for possible

Supreme Court review.   See Almendarez-Torres, 523 U.S. at 247

(1998); Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);

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

     Davinson next asserts that he should be resentenced in light

of United States v. Booker, 125 S. Ct. 738 (2005) because he was

sentenced under the mandatory guideline system.   He concedes that

his argument is subject to plain error review, but contends that

he is not required to show prejudice because the error was

structural and insusceptible of harmless error analysis.

     This court has rejected Davinson’s argument that a Booker

error or the application of the then mandatory guidelines is a

structural error or is presumptively prejudicial.       See United

States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for

cert. filed (Mar. 31, 2005) (No. 04-9517); see also United States

v. Malveaux, 411 F.3d 560-61 n.9 (5th Cir. 2005), petition for

cert. filed (July 11, 2005) (No. 05-5297).   We review for plain

error.   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 “application of the Guidelines in their mandatory

form constitutes error that is plain.”    Id. at 733.     To

demonstrate an effect on his substantial rights, Davinson bears

the burden of showing that the plain error he has identified

“‘affected the outcome of the district court proceedings.’”          Id.

(quoting United States v. Olano, 507 U.S. 724, 734 (1993)).
                          No. 04-40883
                               -3-

     Davinson has not pointed to anything in the record

indicating that the district court would have imposed a lesser

sentence under an advisory scheme.   See Mares, 402 F.3d at 521.

He has thus failed to demonstrate that his substantial rights

were affected, and his sentence is AFFIRMED.
