                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 8, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-51114
                          Summary Calendar



                      UNITED STATES OF AMERICA,

                         Plaintiff-Appellee,

                               versus

                        VICTOR REYES-CARMONA,

                        Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:04-CR-829-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Victor Reyes-Carmona appeals his sentence following his guilty

plea conviction for illegal reentry after deportation, a violation

of 8 U.S.C. § 1326.   Relying on the recent Supreme Court decision

in United States v. Booker, 125 S.Ct. 738 (2005), Reyes-Carmona

first argues that the district court erred by sentencing him under

a mandatory guidelines scheme.      Because he did not raise any

constitutional challenge in the district court to the computation

of his sentence, we review for plain error.        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this opinion should not be published and is not precedent except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.
                                   No. 04-51114
                                        -2-

Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517).                We agree that the district

court   erred   when    it   sentenced       him    pursuant      to   a   mandatory

guidelines system.       Id. at 750, 768-69.               Nevertheless, as the

record does not suggest that the district court would have imposed

a   different   sentence     had    it    been     aware   that   the      sentencing

guidelines are advisory, Reyes-Carmona has not met his burden of

establishing plain error. See United States v. Valenzuela-Quevedo,

__ F.3d __, No. 03-41754, 2005 WL 941353, at **3-4 (5th Cir. April

25, 2005).

      Reyes-Carmona also argues that the prior conviction that

resulted in his increased sentence is an element of a separate

offense under 8 U.S.C. § 1326(b) that should have been alleged in

his indictment.    In Almendarez-Torres v. United States, 523 U.S.

224, 235 (1998), the Supreme Court held that the enhanced penalties

in 8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses. Reyes-Carmona acknowledges that his argument is

foreclosed, but he seeks to preserve this argument for further

review in light of Apprendi v. New Jersey, 530 U.S. 466, 490

(2000).      Apprendi   did    not       overrule    Almendarez-Torres.           See

Apprendi, 530 U.S. at 489-90. 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).

      The judgment of the district court is AFFIRMED.
