                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  February 23, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-51264
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JORGE FLORES-VELASQUEZ,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. 3:03-CR-2264-ALL-KC
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jorge Flores-Velasquez (Flores) appeals from a guilty-plea

conviction for being an alien unlawfully present in the United

States after deportation.     See 8 U.S.C. § 1326.

     For the first time on appeal, Flores argues that the

district court violated the holding in United States v. Booker,

543 U.S. 220 (2005), by increasing his criminal history score

based upon facts not admitted by him or found by a jury and by




     *
       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this opinion should not be published and is not precedent except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. 04-51264
                                -2-

sentencing him under an unconstitutional sentencing guideline

scheme.   Flores’s arguments are reviewed for plain error.

See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005).   Flores does not demonstrate that

the district court would have imposed a different sentence under

an advisory guideline scheme.   See id. at 521-22.   Accordingly,

Flores cannot establish that his substantial rights were

affected.   See id.

     Flores also challenges the constitutionality of § 1326(b).

His constitutional challenge is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998).   Although Flores

contends that Almendarez-Torres was incorrectly decided and that

a majority of the Supreme Court would overrule Almendarez-Torres

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we have

repeatedly rejected such arguments on the basis that

Almendarez-Torres remains binding.   See United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S.

Ct. 298 (2005).   Flores properly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

     AFFIRMED.
