                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40850
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE LUIS MARTINEZ-SALDANA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:02-CR-1596-ALL
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Luis Martinez-Saldana (Martinez) appeals his sentence

for illegal reentry following deportation, in violation of 8

U.S.C. § 1326.    We AFFIRM.

     Martinez contends for the first time on appeal that, under

United States v. Booker, 125 S. Ct. 738 (2005), the district

court erred by imposing sentence under mandatory sentencing

guidelines.    We review this issue for plain error.     See United

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


     *
       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this opinion should not be published and is not precedent except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. 04-40850
                                -2-

Martinez has not carried his burden of showing that his

substantial rights were affected.   See United States v. Mares,

402 F.3d 511, 521–22 (5th Cir. 2005), petition for cert. filed

(U.S. Mar. 31, 2005) (No. 04-9517); United States v. Malveaux,

__ F.3d __, No. 03-41618, 2005 WL 1320362 at *1 n.9 (5th Cir.

Apr. 11, 2005).

     Martinez contends that, in light of Apprendi v. New Jersey,

530 U.S. 466 (2000), and other cases, his sentence violated due

process because it exceeded the maximum imprisonment and

supervised-release terms for the offense charged in the

indictment.   Martinez concedes that this issue is foreclosed

under Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998).   He raises the issue to preserve it for further review.

     Martinez contends that the district court erred by holding

that his North Carolina conviction for taking indecent liberties

with a minor constituted a “crime of violence” under U.S.S.G.

§ 2L1.2(b), resulting in his receiving a more onerous sentence.

Martinez concedes that this issue is foreclosed by United States

v. Izaguirre-Flores, 405 F.3d 270, 271 (5th Cir. 2005), but he

desires to preserve it for further review.

     The judgment is AFFIRMED.
