                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  November 21, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-20646
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

LUIS RODRIGUEZ-TERMINAL,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:04-CR-54-1
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Luis Rodriguez-Terminal (Rodriguez) appeals his guilty-plea

conviction and sentence for illegal reentry following

deportation.   Rodriguez argues that the sentencing provisions of

8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).     Rodriguez correctly

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

the issue for Supreme Court review.     See Apprendi, 530 U.S. at


     *
       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this opinion should not be published and is not precedent except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. 04-20646
                                 -2-

489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).

     Rodriguez also contends that the district court erred in

imposing a sentence pursuant to a belief that the Sentencing

Guidelines were mandatory, in violation of United States v.

Booker, 125 S. Ct. 738, 764-65 (2005).     In the district court,

Rodriguez argued that his sentence was improperly enhanced on the

basis of his prior conviction for a crime of violence, in

contravention of Blakely v. Washington, 542 U.S. 296, 124 S. Ct.

2531 (2004).    This court need not decide whether this objection

preserved a mandatory-sentencing-guideline argument for appeal,

as his claims would succeed even under plain error review.

     Under a plain-error standard, the defendant bears the burden

of “establish[ing] that the error affected the outcome of the

district court proceedings.”    United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005)(internal

quotation marks and citation omitted), cert. denied, 126 S. Ct.

267 (2005); see also United States v. Cruz, 418 F.3d 481, 485

(5th Cir. 2005).    In the instant case, the district court opined

that in the absence of the Sentencing Guidelines, it would have

imposed a lesser sentence than that called for under the

Guidelines.    Rodriguez has shown that this error had a

substantial effect on his sentence.    As a result, Rodriguez’s

sentence is VACATED and the case is REMANDED for further

proceedings.    See Cruz, 418 F.3d at 485.
