                                                       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. 04-40919
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN MANUEL ALEJO-AGRAMON,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-190-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Juan Manuel Alejo-Agramon (Alejo-Agramon) 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, Alejo-Agramon contends that

the district court plainly erred by characterizing his state

felony conviction for simple possession of marijuana as an

“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and

8 U.S.C. § 1101(a)(43)(B), when that same offense was punishable

only as a misdemeanor under federal law.   This issue, however, is

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this opinion should not be published and is not precedent except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

foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697, 706-

11 (5th Cir. 2002), and United States v. Hinojosa-Lopez, 130 F.3d

691, 694 (5th Cir. 1997).

     Alejo-Agramon also contends, for the first time on appeal,

that the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).     As he concedes, this argument is

foreclosed.    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, Alejo-Agramon contends that the district court

committed reversible plain error when it sentenced him pursuant

to the mandatory United States Sentencing Guidelines system held

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

(2005).   He argues that the error was plain, structural, and

presumptively prejudicial.     We review for plain error.   See

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.

2005), petition for cert. filed (July 25, 2005)(No. 05-5556).

     The district court erred when it sentenced Alejo-Agramon

pursuant to the mandatory Guidelines system.     See id. at 733.

However, the error was not structural or presumptively

prejudicial.    See United States v. Martinez-Lugo, 411 F.3d

597, 601 (5th Cir. 2005); United States v. Malveaux, 411 F.3d

558, 560 n.9 (5th Cir. 2005), petition for cert. filed (July 11,

2005) (No. 05-5297).   Further, Alejo-Agramon has failed to point
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                               -3-

to anything in the record indicating that the district court

would have reached a different conclusion had it known that the

Sentencing Guidelines were advisory.   See United States v. Mares,

402 F.3d 511, 521-22 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517).   Although the district court

sentenced Alejo-Agramon at the lowest end of the guideline range,

it found no reason to depart from that range.    See United States

v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir. 2005), petition

for cert. filed (July 26, 2005) (No. 05-5535).   Therefore, Alejo-

Agramon has not demonstrated that his substantial rights were

affected, and he has failed to establish plain error.    See Mares,

402 F.3d at 522.

     AFFIRMED.
