                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 8, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-41299
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EDILBERTO RUBIO-ZARATE,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-298-ALL
                      --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Edilberto Rubio-Zarate appeals his guilty-plea sentence for

illegal reentry after deportation in violation of 8 U.S.C. § 1326

(a) and (b).   He argues that, in light of United States v.

Booker, 125 S. Ct. 738 (2005), the district court plainly erred

in sentencing him under a mandatory guidelines system.       He also

argues that the district court erred in assessing him two

criminal history points for his 1999 conviction of illegal

reentry because he did not knowingly and intelligently waive his


     *
       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this opinion should not be published and is not precedent except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. 04-41299
                                -2-

Sixth Amendment right to counsel before entering an uncounseled

plea of guilty to the 1999 charge.

     After Booker, it is clear that application of the federal

sentencing guidelines in their mandatory form constitutes error

that is plain.   See United States v. Valenzuela-Quevedo, 407 F.3d

728, 732-33 (5th Cir. 2005).   Rubio-Zarate’s contention that this

error is structural and gives rise to a presumption of prejudice

is unavailing.   See United States v. Malveaux, ___ F.3d ___

No. 03-41618, 2005 WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).

Rubio-Zarate must show that the error affected his substantial

rights, and he has not done so.   See Valenzuela-Quevedo, 407 F.3d

at 733-34.   He also has not met his burden of showing that his

waiver of counsel in connection with the 1999 conviction was

invalid.   See Iowa v. Tovar, 124 S. Ct. 1379, 1390 (2004).    The

judgment of the district court is therefore AFFIRMED.
