                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   June 3, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40869
                          Consolidated with
                             No. 04-40891
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MIGUEL GARCIA-COVARRUBIAS,

                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:04-CR-185-ALL
                        --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Miguel Garcia-Covarrubias (Garcia) appeals the sentences

imposed upon his conviction for illegal reentry and the

revocation of his supervised release in a prior illegal reentry

case.    8 U.S.C. § 1326; 18 U.S.C. § 3583(e)(3).   He argues first

that his sentence for violating his supervised release should be

vacated because the district court deprived him of his right to

allocution.    He acknowledges that he was afforded the right of


     *
       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this opinion should not be published and is not precedent except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. 04-40869
                            c/w 04-40891
                                 -2-

allocution on his illegal reentry sentence, which was imposed

during the same hearing as his sentence upon revocation of

supervised release.

       Because Garcia did not raise this issue in the district

court, review is for plain error.    United States v. Reyna, 358

F.3d 344, 353 (5th Cir.) (en banc), cert. denied, 124 S. Ct. 2390

(2004).

       Garcia’s 18-month sentence represented the bottom of the

guideline range applicable to the revocation of his supervised

release.    See U.S.S.G. §§ 7B1.4(a), 7B1.1(a)(2).    Therefore,

prejudice cannot be presumed on that basis alone.      See Reyna,

358 F.3d at 353.    Furthermore, as defense counsel did not argue

that Garcia should be sentenced below the 18-month range, and

that issue was not in dispute, the question was not before the

district court.    Garcia was afforded an opportunity, prior to

imposition of the sentence for illegal reentry, to address the

only argument made in mitigation of his sentence.      He responded

with a promise not to return to the United States and an

assertion that he had returned here to “work honestly,” an

allocution that arguably covered both offenses.      Finally, the

district court did not “reject[] [an] argument[] by the defendant

that would have resulted in a lower sentence” as there were no

genuinely disputed sentencing issues.      See Reyna, 358 F.3d at

353.    The record does not support a finding of actual or presumed
                            No. 04-40869
                            c/w 04-40891
                                 -3-

prejudice.   Therefore, Garcia cannot show plain error.    See id.

at 350-51.

     Garcia argues that Almendarez-Torres v. United States, 523

U.S. 224 (1998) has been undercut by later decisions and should

be overruled.    This court must follow the precedent set in

Almendarez-Torres unless the Supreme Court overrules it.       See

United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001).       As

Garcia recognizes, his argument is foreclosed.

     Garcia challenges the validity of his sentence after United

States v. Booker, 125 S. Ct. 738 (2005).    Plain error governs

this claim because Garcia did not raise it below.    United States

v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.

filed, No. 04-9517 (U.S. Mar. 31, 2005).    The Government concedes

that the first two prongs of the plain-error analysis are

satisfied because the district court sentenced Garcia under the

then-mandatory guidelines scheme.    However, as in Mares, the

record in this case does not indicate whether the sentencing

judge might have imposed a lesser sentence had the guidelines

been advisory.    Thus, Garcia has not carried his burden of

demonstrating that the result “would have likely been different”

under an advisory scheme.    Id.

     AFFIRMED.
