                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 5, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-50301
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JORGE LUIS MARTINEZ-MELCHOR,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. A-03-CR-298-ALL-SS
                       --------------------

Before SMITH, GARZA and PRADO, Circuit Judges

PER CURIAM:*

     Jorge Luis Martinez-Melchor appeals his sentence upon his

guilty-plea conviction for illegal reentry after deportation, in

violation of 8 U.S.C. § 1326(a) and (b)(2).   Martinez contends

that the district court’s upward departure pursuant to U.S.S.G.

§ 4A1.3 was erroneous because his prior offenses were all used to

determine his Criminal History Category, the risk of recidivism

was not unusually high, and the district court failed to explain

adequately the reasons for departure.


     *
       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this opinion should not be published and is not precedent except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. 04-50301
                                -2-

     Martinez had an offense level of 13, a criminal history

category of VI, and a guideline range of 33 to 41 months.    The

district court departed upward to an offense level of 17 and

imposed a sentence of 63 months.   The court explained that it was

moving up four levels because of Martinez’s long criminal

history, because Martinez had been deported on three prior

occasions, and because of the likelihood that he would

recidivate.   Guided by the factors in 18 U.S.C. § 3553(a), we

conclude that there is no reversible error and that the district

court’s sentence was reasonable for the reasons stated by the

district court.   See United States v. Simkanin, 420 F.3d 397,

414-19 (5th Cir. 2005); United States v. Smith, 417 F.3d 483,

489-93 (5th Cir.), cert. denied,       U.S.    , 2005 WL 3027879

(Nov. 14, 2005) (No. 05-7063).

     Martinez also contends that he is entitled to be resentenced

because the district court sentenced him under a mandatory

application of the United States Sentencing Guidelines, which is

prohibited by United States v. Booker, 125 S. Ct. 738 (2005).

The parties agree that plain error is the proper standard of

review in this case.   Martinez does not attempt, however, to make

the showing of plain error that is required by our precedent in

United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005).    Moreover, this court has rejected

his arguments that a Booker error is a structural error and that

such errors are presumed to be prejudicial.    See Mares, 402 F.3d
                          No. 04-50301
                               -3-

at 520-22; see also United States v. Malveaux, 411 F.3d 558, 560

n.9 (5th Cir.), cert. denied, 126 S. Ct. 194 (2005).

     Martinez also asserts that the felony and aggravated-felony

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).

Martinez’s constitutional challenge is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998).   Although he

contends that Almendarez-Torres was incorrectly decided and that

a majority of the Supreme Court would overrule Almendarez-Torres

in light of Apprendi, we have repeatedly rejected such arguments

on the basis that Almendarez-Torres remains binding. See United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005).   Martinez properly concedes that

his argument is foreclosed in light of Almendarez-Torres and

circuit precedent, but he raises it here to preserve it for

further review.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.
