                                                       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
                              No. 04-41718                          Clerk
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

VICTORIANO CRUZ-CASTAN,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-527-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Victoriano Cruz-Castan (“Cruz”) appeals the sentence imposed

following his guilty-plea conviction for illegal reentry, in

violation of 8 U.S.C. § 1326.**    He argues, for the first time on

appeal, that the district court erred in sentencing him under a

mandatory sentencing guidelines scheme, citing United States v.

Booker, 125 S. Ct. 738, 756 (2005).    He acknowledges that the

argument is reviewed for plain error but contends that plain


     *
       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this opinion should not be published and is not precedent except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.
     **
       Cruz does not appeal the revocation of his supervised
release or the sentence imposed following revocation based on
this offense.
                           No. 04-41718
                                -2-

error should not apply because any objection would have been

futile pre-Booker; alternatively, he asserts that he does not

have to demonstrate any effect on his substantial rights because

the error is structural and because prejudice should be presumed.

     Plain error is the correct standard of review.    See United

States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005),

petition for cert. filed (July 11, 2005) (No. 05-5297).    The

district court committed error that is plain when it sentenced

Cruz under a mandatory sentencing guidelines regime.   See United

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

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

States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005).

Cruz, however, fails to meet his burden of showing that the

district court’s error affected his substantial rights.    See

Valenzeuela-Quevedo, 407 F.3d at 733-34; United States v. Mares,

402 F.3d 511, 521 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517); see also United States v. Bringier, 405

F.3d 310, 317 n.4 (5th Cir. 2005), petition for cert. filed (July

26, 2005) (No. 05-5535).   His argument that Mares and Bringier

were wrongly decided is unavailing.   See United States v. Ruff,

984 F.2d 635, 640 (5th Cir. 1993).

     As he concedes, Cruz’s argument that the sentencing

provisions in 8 U.S.C. § 1326(a) and (b) are unconstitutional is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
                           No. 04-41718
                                -3-

(1998).   See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);

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

     The district court’s judgment is AFFIRMED.
