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

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-41564
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN MORALES-OLVERA,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-512-1
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Juan Morales-Olvera (Morales) appeals his guilty-plea

conviction and sentence for being found unlawfully present in the

United States following deportation and removal, without having

obtained the consent of the Attorney General or the Secretary of

the Department of Homeland Security and after having been

convicted of an aggravated felony.   Morales argues that 8 U.S.C.

§§ 1326(b)(1) & (b)(2) are unconstitutional and that Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), should be


     *
       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this opinion should not be published and is not precedent except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. 04-41564
                                 -2-

overruled.   He also contends, in light of United States v.

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

sentencing him because the court believed that the federal

sentencing guidelines were mandatory, rather than advisory.

     Because Morales did not raise the relevant objections in the

district court, we review only for plain error.    See United

States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition

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

decision in Almendarez-Torres has been called into question, see

Shepard v. United States, 125 S. Ct. 1254, 1264 (2005) (Thomas,

J., concurring), the Supreme Court has not overruled it.

Accordingly, this argument is foreclosed.    See United States v.

Rivera, 265 F.3d 310, 312 (5th Cir. 2001).

     With respect to the district court’s mandatory application

of the sentencing guidelines, Morales concedes that he cannot

demonstrate that the district court would have imposed a

different sentence had it considered the guidelines to be

advisory.    Accordingly, he has not established plain error with

respect to his sentence.    See Mares, 402 F.3d at 522.

     AFFIRMED.
