                                                       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. 04-41507
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TEODORO HIPOLITO-ALCANTAR,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-959-ALL
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Teodoro Hipolito-Alcantar (Hipolito), appeals his conviction

and sentence for attempted reentry into the United States

following a prior aggravated felony conviction.   See 8 U.S.C.

§ 1326 (a), (b).

     For the first time on appeal, Hipolito argues that the

district court erred in imposing a sentence under a mandatory

guideline scheme, in violation of United States v. Booker, 125

S. Ct. 738, 756-57 (2005).   We review for plain error.     See


     *
       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this opinion should not be published and is not precedent except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. 04-41507
                                 -2-

United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.

2005).    Hipolito makes no showing, as required by Martinez-Lugo,

that the district court would likely have sentenced him

differently under an advisory sentencing scheme.   Similarly,

there is no indication from the district court’s remarks at

sentencing that it would have reached a different conclusion.

Thus, Hipolito has not met his burden of persuasion to show that

the district court’s imposition of a sentence under a mandatory

guideline scheme was plain error.    See Martinez-Lugo, 411 F.3d at

601.

       Hipolito also argues for the first time on appeal 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).    Hipolito 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.     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).

       AFFIRMED.
