                                                       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. 04-41073
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LINO ROMAN MARTINEZ, also known as Jose Vidas,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-257-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Lino Roman Martinez (Martinez) appeals from his guilty-plea

conviction for being an alien unlawfully found in the United

States after deportation and after an aggravated felony

conviction, in violation of 8 U.S.C. § 1326.   Martinez argues

that the sentencing provisions of 8 U.S.C. § 1326(b) are

unconstitutional and that the district court erred under United

States v. Booker, 125 S. Ct. 738 (2005), when it sentenced him

under mandatory Guidelines.



     *
       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this opinion should not be published and is not precedent except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. 04-41073
                                -2-

     As Martinez concedes, his argument that the sentencing

provisions in 8 U.S.C. § 1326(b) are unconstitutional because

they do not require the fact of a prior conviction to be treated

as an offense element and proved beyond a reasonable doubt was

rejected in Almendarez-Torres v. United States, 523 U.S. 224,

234-35, 239-47 (1998).   This court must follow the precedent

set in Almendarez-Torres unless the Supreme Court overrules it.

See United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001).

Accordingly, Martinez’s argument is foreclosed.

     As Martinez argues, the district court erred by imposing a

sentence pursuant to a mandatory application of the Guidelines.

Booker, 125 S. Ct. at 767-68; United States v. Martinez-Lugo,

411 F.3d 597, 600-01 (5th Cir. 2005).     However, in Martinez-Lugo,

411 F.3d at 601, this court rejected the argument urged by

Martinez, that the error is structural and presumptively

prejudicial.   Instead, Martinez-Lugo held that this error is

subject to the plain error analysis set forth in United States v.

Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517).    Martinez-Lugo, 411 F.3d at 601.

Thus, because Martinez raises this issue for the first time on

appeal, his argument is reviewable only for plain error.

     Because Martinez was sentenced under a mandatory Guidelines

regime, he has met the first two prongs of the plain error test

because Fanfan error is “error” that is “plain.”     See

Martinez-Lugo, 411 F.3d at 600.   Martinez has failed to point to
                           No. 04-41073
                                -3-

statements by the sentencing judge that demonstrate a likelihood

that the judge, sentencing under an advisory rather than a

mandatory scheme, would have reached a significantly different

result.   See United States v. De Jesus-Batres, 410 F.3d 154, 165

(5th Cir. 2005).   Martinez’s arguments are speculative and are

based on arguments that he did not present to the district court.

He has failed to establish “with a probability sufficient to

undermine confidence in the outcome, that if the judge had

sentenced him under an advisory sentencing regime rather than a

mandatory one, he would have received a lesser sentence.”    United

States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005) (citation

omitted).   He has therefore failed to show that the error

affected his substantial rights and has thus failed to establish

plain error.   See Martinez-Lugo, 411 F.3d at 600-01.

     Accordingly, the district court’s judgment is AFFIRMED.
