                                                       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. 04-40824
                        Conference Calendar


UNITED STATES OF AMERICA,
                                    Plaintiff-Appellee,

versus

MARVIN ANTONIO MATA-DELEON,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-16-ALL
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Marvin Antonio Mata-DeLeon (“Mata”) appeals his 41-month

prison sentence imposed following his guilty plea to illegally

re-entering the United States after having been deported and

after having been convicted of an “aggravated felony,” in

violation of 8 U.S.C. § 1326(a) and (b).

     Mata asserts that, under Apprendi v. New Jersey, 530 U.S.

466 (2000), and its progeny, 8 U.S.C. § 1326(b) is

unconstitutional because it permits a sentencing judge to

increase a sentence beyond the statutory maximum based on a


     *
       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this opinion should not be published and is not precedent except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. 04-40824
                                -2-

factor that need not be submitted to a jury for proof or admitted

by the defendant.   Mata concedes that this argument is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

but he seeks to preserve the issue for possible Supreme Court

review.   This court must follow Almendarez-Torres “‘unless and

until the Supreme Court itself determines to overrule it.’”

United States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.

2005) (citation omitted), petition for cert. filed (July 22,

2005) (No. 05-5469).

     For the first time on appeal, Mata argues that he was

illegally sentenced pursuant to the mandatory Sentencing

Guidelines regime declared unconstitutional in United States v.

Booker, 125 S. Ct. 738 (2005).   Our review is for plain error.

See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),

petition for cert. filed (Mar. 31, 2005) (No. 04-9517).     The

district court’s application of the guidelines in their mandatory

form constituted error that is “plain” for purposes of satisfying

the first two prongs of the plain-error analysis.    United States

v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005),

petition for cert. filed (July 25, 2005) (No. 05-5556).     Mata

also bears the burden of showing that his “substantial rights”

were violated, such “that the sentencing judge--sentencing under

an advisory scheme rather than a mandatory one--would have

reached a significantly different result.”    See Mares, 402 F.3d

at 521.   Mata has not made such a showing.   See United States v.

Bringier, 405 F.3d 310, 317-18 n.4 (5th Cir. 2005), petition for

cert. filed (July 26, 2005) (No. 05-5535).

     The judgment of the district court is AFFIRMED.
