                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    June 22, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40748
                          Conference Calendar


UNITED STATES OF AMERICA,
                                      Plaintiff-Appellee,

versus

FILIBERTO RIVERA-ORTIZ,
                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-91-ALL
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Filiberto Rivera-Ortiz (“Rivera”) appeals his sentence

imposed following his guilty plea to illegally re-entering the

United States after having been deported, in violation of

8 U.S.C. § 1326.   The district court sentenced Rivera to 60

months of imprisonment and three years of supervised release, as

well as to 10 months in prison for the revocation of a prior

supervised-release term.

     For the first time on appeal, Rivera argues that his

sentence was unconstitutional because it was enhanced pursuant to

the mandatory Sentencing Guidelines regime rejected in United

     *
       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this opinion should not be published and is not precedent except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. 04-40748
                                  -2-

States v. Booker, 125 S. Ct. 738 (2005).     Plain error is the

appropriate standard of review.     United States v. Malveaux,

___F.3d___, No. 03-41618, 2005 WL 1320362 (5th Cir. Apr. 11,

2005).   Rivera has not established plain error with regard to his

Booker claim because he has not established that his sentence

affected his substantial rights.     See United States v. Mares, 402

F.3d 511, 520-22 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517).    The record does not indicate that the

district court “would have reached a significantly different

result” under a sentencing scheme in which the guidelines

were advisory only.     Id. at 521-22; United States v. Valenzuela-

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

     Rivera also asserts 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.   Rivera 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).

     Accordingly, the district court’s judgment is AFFIRMED.
