                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 17, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40671
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE AMERICO RODRIGUEZ-PUENTE,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-96-ALL
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Americo Rodriguez-Puente (Rodriguez) challenges his

conviction and the sentence he received after he pleaded guilty

to illegal reentry.   Rodriguez correctly concedes that his

argument 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, 490 (2000), and that he was

subject to only a two-year maximum sentence is foreclosed.        See

Shepard v. United States, 125 S. Ct. 1254 (2005); Dretke 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this opinion should not be published and is not precedent except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.
                            No. 04-40671
                                 -2-

Haley, 124 S. Ct. 1847 (2004); United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000).

     Rodriguez’s argument that the district court’s error in

sentencing him under a mandatory Guidelines scheme is structural

and presumed to be prejudicial is also foreclosed.   See United

States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005).

Rodriguez fails to show that his sentence is plain error inasmuch

as he points to nothing indicating that the district court would

have imposed a lighter sentence under an advisory Guidelines

scheme.   See United States v. Inman, 411 F.3d 591, 596 (5th Cir.

2005).

     AFFIRMED.
