                                                       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. 04-41068
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

PEDRO BANEGAS-VALDEZ,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-184-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Pedro Banegas-Valdez (Banegas) appeals the 33-month sentence

imposed after he pleaded guilty to one count of illegal reentry

into the United States.     See 8 U.S.C. § 1326.

     Banegas contends that 8 U.S.C. § 1326(b) is unconstitutional

and that this court should vacate his sentence and remand his

case for resentencing to no more than two years in prison under

8 U.S.C. § 1326(a).   As he concedes, this contention is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998).

     *
       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this opinion should not be published and is not precedent except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. 04-41068
                                -2-

     Banegas also contends that he is entitled to resentencing

because the district court sentenced him under a mandatory

application of the federal sentencing guidelines contrary to the

rule of United States v. Booker, 125 S. Ct. 738, 756-57, 769

(2005).   We review for plain error.   See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition

for cert. filed (July 25, 2005) (No. 05-5556).   Although there

was an error, Banegas has failed to demonstrate a sufficient

probability “that the district judge would have imposed a

different sentence” under advisory guidelines.    See id. at 733;

United States v. Mares, 402 F.3d 511, 502, 521-22 (5th Cir.

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

Banegas thus fails to show that the error affected his

substantial rights as he must do to meet the plain-error

standard.   See Mares, 402 F.3d at 521-22.

     The judgment of the district court is AFFIRMED.
