                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 3, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-50415
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE GUADALUPE ESPINOZA-GAMEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. 2:03-CR-720-ALL-AML
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Guadalupe Espinoza-Gamez (Espinoza-Gamez) appeals his

guilty plea conviction and sentence for illegal reentry following

deportation in violation of 8 U.S.C. § 1326.

     For the first time on appeal, Espinoza-Gamez contends that

the district court violated his Fifth and Sixth Amendment rights

when it enhanced his sentence based on facts that were neither

admitted by him nor found by a jury beyond a reasonable doubt.

Because Espinoza-Gamez did not object on this basis in the


     *
       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this opinion should not be published and is not precedent except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. 04-50415
                                -2-

district court, this court’s review is for plain error.     See

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

petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

     The district court erred when it sentenced Espinoza-Gamez

pursuant to the mandatory guideline system held unconstitutional

in United States v. Booker, 125 S. Ct. 738 (2005).    See United

States v. Valenzuela-Quevedo,      F.3d    , No. 03-41754, 2005 WL

941353, at *4 (5th Cir. Apr. 25, 2005) (“It is clear after Booker

that application of the Guidelines in their mandatory form

constitutes error that is plain.”).   However, Espinoza-Gamez has

failed to point to any evidence in the record indicating that the

same sentence would not have been imposed had the district court

known that the Sentencing Guidelines were advisory.    The record

itself gives no indication that the district court would have

reached a different result under an advisory guidelines system.

Although the district court sentenced Espinoza-Gamez at the

lowest end of the guideline range, it found no reason to depart

from that range.   Given the lack of evidence indicating that the

district court would have reached a different conclusion,

Espinoza-Gamez has not demonstrated that his substantial rights

were affected, and, thus, he has failed to establish plain error.

See Mares, 402 F.3d at 520-22.

     Espinoza-Gamez also contends that his sentence violated due

process because it exceeded the statutory maximum for the charged

offense.   Specifically, he argues that because a prior qualifying
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                                -3-

conviction was not alleged in the indictment, he was subject to a

statutory maximum of two years of imprisonment under 18 U.S.C.

§ 1326(a).   He concedes that this argument is foreclosed by

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

seeks to preserve the issue for possible Supreme Court review.

As Espinoza-Gamez concedes, this issue is foreclosed.   See

Almendarez-Torres, 523 U.S. at 247; United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000).

     Accordingly, the district court’s judgment is AFFIRMED.
