                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      October 7, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 05-40052
                             Summary Calendar


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                      JOSE JORGE GONZALEZ-ACOSTA,

                                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:04-CR-558-ALL
                        --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Jose Jorge Gonzalez-Acosta appeals his guilty-plea conviction

and sentence for illegal reentry after deportation in violation of

8 U.S.C. § 1326 (a) and (b).     Gonzalez-Acosta 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.

     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); see also United States v.


     *
             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opinion should not be published and is not precedent except under the limited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.
Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005), petition for cert.

filed (July 11, 2005) (No. 05-5297).                    After Booker, it is clear

that application of the federal sentencing guidelines in their

mandatory form constitutes error that is plain.                             Valenzuela-

Quevedo, 407 F.3d at 733-34.                    However, nothing in the record

indicates      that     the     plain     error        affected     Gonzalez-Acosta’s

substantial rights.           See id.

     Gonzalez-Acosta          argues     that    the     “felony”    and    “aggravated

felony”     provisions        of    8   U.S.C.     §    1326(b)(1)        and   (2)   are

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

(2000).        Gonzalez-Acosta          acknowledges       that     his    argument    is

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

(1998), but he wishes to preserve the issue for Supreme Court

review    in    light    of        Apprendi.       Apprendi       did     not   overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States

v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).                 Thus, we must follow

Almendarez-Torres unless the Supreme Court overrules it.                         Dabeit,

231 F.3d at 984.

     AFFIRMED.




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