                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 23, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-41761
                        Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE FILEMON SANCHEZ-VALDIVIA,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-705-ALL
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Filemon Sanchez-Valdivia (Sanchez) appeals his sentence

for illegal reentry after being deported subsequent to an

aggravated felony conviction.    For the first time on appeal,

Sanchez asserts that the district court’s belief during

sentencing that the Federal Sentencing Guidelines were mandatory,

rather than advisory, is reversible error under United States v.

Booker, 543 U.S. 220 (2005).    Sanchez also asserts that the

“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)

are unconstitutional.   We need not decide the applicability 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this opinion should not be published and is not precedent except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. 04-41761
                                -2-

the waiver provision in this case because the issues that Sanchez

raises lack arguable merit or are foreclosed.

     We review Sanchez’s Booker-based challenge for plain error.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th.

Cir.), cert. denied, 126 S. Ct. 267 (2005).     Sanchez has failed

to establish that the error affected his substantial rights.     See

United States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.),

cert. denied, 126 S. Ct. 264 (2005).   Therefore, he cannot

demonstrate plain error.

     Sanchez’s constitutional challenge to 8 U.S.C. § 1326 is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Sanchez contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).   Sanchez properly concedes

that his argument is foreclosed in light of Almendarez-Torres and

circuit precedent, but he raises it here to preserve it for

further review.

     The judgment of the district court is thus AFFIRMED.
