                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 4, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40363
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE MENDOZA-SIFUENTES,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                      USDC No. 1:03-CR-1002-ALL
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the conviction and sentence of Jose

Mendoza-Sifuentes (Mendoza).     United States v. Mendoza-Sifuentes,

No. 04-40363 (5th Cir. Dec. 17, 2004) (unpublished).        The Supreme

Court vacated and remanded for further consideration in light of

United States v. Booker, 125 S. Ct. 738 (2005).     See de la Cruz-

Gonzalez v. United States, 125 S. Ct. 1995 (2005).       This court




     *
       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this opinion should not be published and is not precedent except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. 04-40363
                               -2-

requested and received supplemental letter briefs addressing the

impact of Booker.

     In his supplemental letter brief, Mendoza argues that the

district court committed reversible plain error when it sentenced

him pursuant to the mandatory United States Sentencing Guidelines

system held unconstitutional in Booker.    He also argues that his

Booker claim is not precluded by the terms of the appellate-

waiver provision in his plea agreement.

     This court previously held that Mendoza’s claims were not

precluded by the terms of the appellate-waiver provision.

However, the Supreme Court vacated this court’s judgment and

remanded the case for further consideration in light of Booker.

Thus, the prior opinion is deprived of any precedential effect,

and this court must consider whether, in light of Booker and this

court’s subsequent decisions, Mendoza’s Booker claim is precluded

by the terms of the appellate-waiver provision.    See Brown v.

Bryan County, OK, 219 F.3d 450, 453 n.1 (5th Cir. 2000).

     The record reflects that Mendoza knowingly and voluntarily

waived his right to appeal his sentence.   See United States v.

McKinney, 406 F.3d 744, 746 (5th Cir. 2005).   He reserved the

right to appeal only a sentence imposed above the statutory

maximum or an upward departure from the guideline range.    After

Booker, this court has held that the foregoing exceptions are not

implicated, and, thus, Mendoza’s Booker claim is barred by the

appellate-waiver provision.   See United States v. Bond,       F.3d
                           No. 04-40363
                                -3-

   , No. 04-41125, 2005 WL 1459641, at *3 (5th Cir. June 21,

2005) (sentence in excess of the statutory maximum); McKinney,

406 F.3d at 746-47 (upward departure).

     In his original appeal to this court, Mendoza argued that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) were unconstitutional.    To the extent Mendoza’s

challenge to the constitutionality of 8 U.S.C. § 1326 is

construed as a challenge to his conviction, it is not precluded

by the terms of the appellate-waiver provision.     Nevertheless,

this argument is foreclosed.     See Almendarez-Torres v. United

States, 523 U.S. 224, 247 (1998); United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000).     Booker did not overrule

Almendarez-Torres.   See Booker, 125 S. Ct. at 756.

     Accordingly, the judgment of the district court is AFFIRMED.
