                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 16, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40547
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus


JOSE MONREAL-MONREAL,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:03-CR-1713-ALL
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Monreal-Monreal appeals the sentence imposed following

his guilty-plea conviction for being unlawfully present in the

United States following deportation.   For the first time on

appeal, Monreal argues that the sentence enhancing provisions

contained in 8 U.S.C. §§ 1326(b)(1) and 1326(b)(2) are

unconstitutional.   Monreal concedes that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998), but asserts that the decision has been cast into

     *
       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this opinion should not be published and is not precedent except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. 04-40547
                                  -2-

doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).         Also

for the first time on appeal, Monreal asserts that if Almendarez-

Torres is overruled, the district court’s application of the 16-

level enhancement for his being deported following a conviction

for a drug trafficking offense for which a sentence greater than

13 months was imposed would be unconstitutional under Blakely v.

Washington, 124 S. Ct. 2531 (2004).    He seeks to preserve his

arguments for further review and to avoid procedural default.

     Apprendi did not overrule Almendarez-Torres.      See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).     The Supreme Court’s decisions in Blakely and

United States v. Booker, 125 S. Ct. 738 (2005), did not overrule

Almendarez-Torres.     See Booker, 125 S. Ct. at 756; Blakely, 124

S. Ct. at 2536-43.      This court must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.”     Dabeit, 231 F.3d at 984 (internal

quotation marks and citation omitted).      As Monreal concedes,

these arguments are foreclosed.

     For the first time in his supplemental letter brief, Monreal

argues that his sentence is illegal under Booker because it was

imposed pursuant to a mandatory application of the sentencing

guidelines.   As Monreal concedes, we review this issue only for

plain error because Monreal did not raise a Sixth Amendment

objection below.     See United States v. Mares, 402 F.3d 511, 520

(5th Cir. 2005).   In order to establish plain error, Monreal must
                            No. 04-40547
                                 -3-

demonstrate that (1) there is an error; (2) that is plain by

being clear or obvious; and (3) that affects his substantial

rights.   United States v. Olano, 507 U.S. 725, 731-37 (1993).      If

these conditions are satisfied, we may exercise our discretion to

correct the error only if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”     Id. at

736-37 (internal quotation marks and citation omitted).

     As the district court did not make any factual findings,

other than Monreal’s prior conviction, that enhanced Monreal’s

sentence, the district court did not commit a Sixth Amendment

violation.    See Booker, 125 S. Ct. at 750, 769.   Nevertheless,

the district court committed error that was plain by sentencing

Monreal under a mandatory application of the sentencing

guidelines.   See United States v. Valenzuela-Quevedo, __ F.3d __,

No. 03-41754, 2005 WL 941353 at *4 (5th Cir. Apr. 25, 2005).

     At sentencing, the district court stated that it would

sentence Monreal at the low end of the guidelines range but that

it did not have any latitude to further reduce his sentence.     The

district court sentenced Monreal to the lowest sentence within

the guidelines sentencing range.   Because Monreal can point to a

statement from the district court demonstrating a likelihood that

he would have received a lesser sentence under an advisory

application of the sentencing guidelines, he has shown that the

error affected his substantial rights and has met the third prong
                           No. 04-40547
                                -4-

of the plain error test.   See United States v. Pennell, __ F.3d

__, No. 03-50926, 2005 WL 1030123 at *5 (5th Cir. May 4, 2005).

     This court has held that errors in sentencing guidelines

calculations that increase a defendant’s sentence seriously

affect the fairness, integrity, or public reputation of judicial

proceedings.   See United States v. Gracia-Cantu, 302 F.3d 308,

313 (5th Cir. 2002).   Because Monreal has shown the likelihood

that the error in this case increased his sentence, he has shown

that the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.   See Pennell, 2005 WL

1030123 at *5-*6.

     The district court’s imposition of Monreal’s sentence

pursuant to a mandatory application of the sentencing guidelines

was plainly erroneous.   Accordingly, Monreal’s sentence is

VACATED, and this case is REMANDED to the district court for

resentencing consistent with Booker.
