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

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-40337
                             c/w 04-40476
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ABEL GARCIA-OCHOA,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-779-ALL
                      --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Abel Garcia-Ochoa appeals the revocation of his supervised

release and the sentence imposed following his guilty plea to

illegal reentry.   We affirm.

     Even if we assume arguendo that the district court violated

FED. R. CRIM. P. 32 in failing to allow Garcia the right of

allocution at his revocation hearing, his claim fails because he

cannot show plain error.    See United States v. Reyna, 358 F.3d

344, 353 (5th Cir.) (en banc), cert. denied, 124 S. Ct. 2390

     *
       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this opinion should not be published and is not precedent except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. 04-40337
                           c/w No. 04-40476
                                  -2-

(2004).   The record reveals that Garcia was sentenced at the

bottom of the Guideline range applicable to the revocation of his

supervised release, and it does not reveal that there were

disputed facts, which, if resolved in Garcia’s favor, would have

reduced his sentence.   See id.   Garcia therefore cannot show that

the alleged error affected his substantial rights.     See id.

     Garcia correctly concedes that his constitutional challenge

to 8 U.S.C. § 1326(b) is foreclosed, and he raises it only to

preserve its further review by the Supreme Court.     See

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998);

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

     Finally, Garcia’s claim, raised for the first time on

appeal, that he is entitled to resentencing because he was

sentenced under the mandatory Guideline regime held

unconstitutional in United States v. Booker, 125 S. Ct. 738

(2005), does not survive plain error review.    See United States

v. Martinez-Lugo, __ F.3d__, No. 04-40478, 2005 WL 1331282, at *2

(5th Cir. June 7, 2005).    The district court sentenced Garcia to

the middle of the applicable Guideline range, implicitly

rejecting the arguments made in mitigation.    Garcia has therefore

not shown that the error affected the outcome of his illegal

reentry sentencing, and he has thus not carried his burden of

showing that the error affected his substantial rights.     Id.

     AFFIRMED.
