                                                       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. 04-20366
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAMON ARTURO COLATOS-RIVAS,
also known as Ramon Rivas Colatos-Rivas,
also known as Ramon Rivas,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:03-CR-441-1
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Ramon Arturo Colatos-Rivas (Colatos) appeals from his

sentence for illegal reentry following deportation.     For the

reasons that follow, Colatos’s sentence is affirmed.

     Colatos argues that the district court erred by

characterizing his state conviction for possession of a

controlled substance as an aggravated felony.   He contends that a

prior conviction must qualify as a felony under federal law in


     *
       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this opinion should not be published and is not precedent except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. 04-20366
                                 -2-

order to be an aggravated felony under the guidelines.    Colatos’s

argument is foreclosed.    See United States v. Hernandez-Avalos,

251 F.3d 505, 510 (5th Cir. 2001).

     Colatos contends that Almendarez-Torres v. United States,

523 U.S. 224 (1998), had been undermined by subsequent Supreme

Court decisions and should be overruled.    Colatos concedes that

his argument is foreclosed, but he raises the issue to preserve

it for further review.    Colatos’s argument is foreclosed.   See

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

     Colatos contends that his sentence is unconstitutional

because it was imposed pursuant to the formerly mandatory

Sentencing Guidelines.    He contends that his sentencing under the

formerly mandatory Sentencing Guidelines was plainly erroneous

and reversible pursuant to United States v. Booker, 125 S. Ct.

738 (2005); that the Booker error was structural in nature, thus

excusing him from showing prejudice; that the Booker error was

prejudicial because his presentation at sentencing might have

been different had he known the guidelines were not binding, and

because the district court might have imposed a different

sentence after hearing a different sentencing presentation; and

that, even if the Booker error was not structural, it should be

presumed prejudicial.

     Colatos’s contention is reviewed under the plain error

standard.   See United States v. Valenzuela-Quevedo, 407 F.3d 728,

732-33 (5th Cir. 2005), petition for cert. filed (July 25, 2005)
                            No. 04-20366
                                 -3-

(No. 05-5556).   Colatos cannot demonstrate that the plain error

he has identified “affected the outcome of the district court

proceedings.”    See id. at 733 (internal quotation marks and

citation omitted).   The district court rejected Colatos’s

arguments for a downward departure based on his criminal history

score overrepresenting the seriousness of his criminal history,

his childhood disease, his mother leaving him at an early age,

and his cultural assimilation.   The district court assigned

reasons for rejecting those arguments, and none of the district

court’s reasons indicated that it might have considered a lower

sentence but for the mandatory sentencing scheme.

     AFFIRMED.
