                                                         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. 04-40896
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE ALEJANDRO MEDINA-HUITRON, also known as Jose A. Medina,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 5:04-CR-112-ALL
                         --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Alejandro Medina-Huitron appeals the sentence imposed

following his conviction for attempting to reenter the United

States following a prior deportation, in violation of 8 U.S.C.

§ 1326 and 6 U.S.C. §§ 202 and 557.    Finding no error, we affirm.

     Medina first argues that, in light of United States v.

Booker, 125 S. Ct. 738 (2005), the district court erred in

imposing a sentence utilizing the Sentencing Guidelines as

mandatory.     As Medina did not preserve this issue, we review only


     *
       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this opinion should not be published and is not precedent except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. 04-40896
                                  -2-

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); see also United States v. Malveaux, __F.3d__,

No. 03-41618, 2005 WL 1320362 (5th Cir. Apr. 11, 2005).

Application of the Guidelines as mandatory, even absent a Sixth

Amendment violation as is the case here, is plain or obvious

error after Booker.     See United States v. Valenzuela-Quevedo, 407

F.3d 728, 733 (5th Cir. 2005).    However, Medina cannot show that

the error affected his substantial rights because the record does

not indicate that the district court would have imposed a lower

sentence under an advisory, rather than a mandatory, Guidelines

scheme.   See id.    To the contrary, the sentencing transcript

demonstrates that the district court believed Medina’s 16-month

sentence to be appropriate in light of Medina’s criminal history.

     Medina’s second argument, that 8 U.S.C. §§ 1326(b)(1) and

(2) are unconstitutional, is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235, 239-47 (1998).       See United

States v. Martinez-Mata, 393 F.3d 625, 629 n.3 (5th Cir. 2004),

cert. denied, 125 S. Ct. 1877 (2005).       Medina concedes this

point, but raises it to preserve the matter for further review.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.
