                                                       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. 04-50708
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GILBERTO DELGADO-RAMIREZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 2:04-CR-112-1-WWJ
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Gilberto Delgado-Ramirez appeals his sentence following his

guilty-plea conviction of illegal reentry, in violation of 8

U.S.C. § 1326(a) and (b)(2).   The district court sentenced him to

27 months of imprisonment, three years of supervised release, and

a $100 special assessment.

     Delgado-Ramirez argues that 8 U.S.C. § 1326(b)(2) is

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466

(2000), because it does not require the fact of a prior


     *
       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this opinion should not be published and is not precedent except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. 04-50708
                                -2-

aggravated-felony conviction to be charged in the indictment and

proved beyond a reasonable doubt.   As Delgado-Ramirez concedes,

this argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), and Almendarez-Torres was not

overruled by Apprendi.   See United States v. Sarmiento-Funes, 374

F.3d 336, 346 (5th Cir. 2004).

     For the first time on appeal, Delgado-Ramirez argues that,

under United States v. Booker, 125 S. Ct. 738 (2005), this court

must vacate his sentence and remand for resentencing because the

mandatory guideline regime was in place at the time of his

sentencing.   An unpreserved challenge to the computation of a

defendant’s sentence under the formerly mandatory sentencing

guidelines is reviewed for plain error.    United States v. Mares,

402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517).

     The district court’s application of the guidelines in their

mandatory form constituted error that is “plain” for purposes of

satisfying the first two prongs of the plain error analysis.     See

United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.

2005).   Delgado-Ramirez must nevertheless show that the court’s

error affected his substantial rights.    Id.   To make such a

showing, Delgado-Ramirez bears the burden of demonstrating “that

the sentencing judge--sentencing under an advisory scheme rather

than a mandatory one--would have reached a significantly

different result.”   See Mares, 402 F.3d at 521.   Delgado-Ramirez
                          No. 04-50708
                               -3-

has failed to make such a showing.   Accordingly, the judgment of

the district court is AFFIRMED.
