                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 24, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-41157
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

VICTOR RODRIGUEZ-CASTILLO,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-314-ALL
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Victor Rodriguez-Castillo pleaded guilty pursuant to a plea

agreement to attempted reentry after deportation in violation of 8

U.S.C. §§ 1326(a) and (b) and was sentenced to 18 months of

imprisonment and three years of supervised release. He appeals his

conviction and sentence.

     For the first time on appeal, Rodriguez-Castillo contends that

he was illegally sentenced pursuant to the formerly mandatory

sentencing guidelines regime, in violation of United States v.


     *
       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this opinion should not be published and is not precedent except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. 04-41157
                                 -2-

Booker, 125 S. Ct. 738 (2005). Rodriguez-Castillo’s plea agreement

contained a waiver-of-appeal provision by which he waived “the

right to appeal the sentence imposed or the manner in which it was

determined,” except for a sentence above the statutory maximum or

an upward departure from the applicable guidelines range.     At his

rearraignment, the magistrate judge incorrectly told him that he

retained the right to appeal an “illegal sentence.”      Rodriguez-

Castillo does not dispute the voluntariness of his plea.    However,

because we have considered the waiver issue as a jurisdictional

matter, we raise this aspect of the waiver issue sua sponte.     See

United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001).

Because the magistrate judge inaccurately described the waiver

provision, Rodriguez-Castillo’s waiver cannot be deemed knowing and

voluntary with respect to an “illegal sentence.”    See FED. R. CRIM.

P. 11(b)(1)(N); United States v. Robinson, 187 F.3d 516, 517-18

(5th Cir. 1999).

     Sentencing a defendant pursuant to a mandatory guidelines

scheme, standing alone, constitutes “Fanfan” error, and such an

error is “plain.”    See Booker, 125 S. Ct. at 769; United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005).    Rodriguez-

Castillo makes no argument, and “there is no indication in the

record from the sentencing judge’s remarks or otherwise” that the

court would have imposed a different sentence under an advisory

guidelines regime.    United States v. Mares, 402 F.3d 511, 522 (5th

Cir. 2005), petition for cert. filed (Mar. 31, 2005)(No. 04-9517).
                           No. 04-41157
                                -3-

Because Rodriguez-Castillo has not shown that the error affected

his “substantial rights,” see id. at 521, he has not demonstrated

plain error.

     Rodriguez-Castillo also argues that, under Apprendi v. New

Jersey, 530 U.S. 466 (2000), and its progeny, 8 U.S.C. § 1326(b) is

unconstitutional because it permits a sentencing judge to increase

a sentence beyond the statutory maximum based on a factor that need

not be submitted to a jury for proof or admitted by the defendant.

Rodriguez-Castillo concedes that this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but

he seeks to preserve the issue for possible Supreme Court review.

This court must follow Almendarez-Torres “‘unless and until the

Supreme Court itself determines to overrule it.’” United States v.

Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir. 2005) (citation

omitted).

     AFFIRMED.
