                                                       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. 04-41743
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN MISAEL VERGARA-GONZALEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-667-1
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Juan Misael Vergara-Gonzalez appeals his sentence upon his

guilty-plea conviction for illegal reentry after deportation, in

violation of 8 U.S.C. § 1326(a) and (b)(2).   Vergara-Gonzalez’s

appeal waiver is unenforceable because the magistrate judge

advised him at his rearraignment hearing that he could appeal an

illegal sentence.   See, e.g., United States v. Robinson, 187 F.3d

516, 517-18 (5th Cir. 1999).




     *
       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this opinion should not be published and is not precedent except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. 04-41743
                                -2-

     Vergara-Gonzalez contends that he is entitled to be

resentenced because the district court sentenced him under a

mandatory application of the United States Sentencing Guidelines,

which is prohibited by United States v. Booker, 543 U.S. 220

(2005).   The parties agree that plain error is the proper

standard of review in this case.   Vergara-Gonzalez does not

attempt, however, to make the showing of plain error that is

required by our precedent in United States v. Mares, 402 F.3d

511, 520 n.9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

Moreover, this court has rejected his arguments that a Booker

error is a structural error and that such errors are presumed to

be prejudicial.   See Mares, 402 F.3d at 520-22; see also United

States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.),

cert. denied, 126 S. Ct. 194 (2005).

     Vergara-Gonzalez also asserts that the felony and

aggravated-felony provisions of § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Vergara-Gonzalez’s constitutional challenge is

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

(1998).   Although he contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi, 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).
                          No. 04-41743
                               -3-

Vergara-Gonzalez 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.   For the

foregoing reasons, the judgment of the district court is

AFFIRMED.
