                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 5, 2005

                                                          Charles R. Fulbruge III
                            No. 04-40945                          Clerk
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

SERAFIN MACHADO-BERNAL,
                                    Defendant-Appellant.
                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:04-CR-206-ALL
                       --------------------
Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Serafin Machado-Bernal appeals his guilty-plea conviction

and his sentence for being found unlawfully in the United States

after deportation following a conviction for an aggravated felony

in violation of 8 U.S.C. § 1326(a) & (b).    He argues that 8

U.S.C. § 1326(b) is unconstitutional in view of Apprendi v. New

Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 124 S. Ct.

2531 (2004).   Apprendi did not overrule Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).     See Apprendi, 530 U.S.

at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).   The Supreme Court’s decisions in United States v. Booker,

125 S. Ct. 738 (2005), and Blakely did not overrule Almendarez-


     *
       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this opinion should not be published and is not precedent except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. 04-40945
                                  -2-

Torres.    See Booker, 125 S. Ct. at 756; Blakely, 124 S. Ct. at

2537.     This court must follow Almendarez-Torres “unless and until

the Supreme Court itself determines to overrule it.”        Dabeit, 231

F.3d at 984.    Therefore, Machado-Bernal’s argument is foreclosed.

     Machado-Bernal argues that the district court committed

reversible plain error in imposing his sentence under the

mandatory United States Sentencing Guidelines held

unconstitutional in Booker.    Because he did not raise this issue

in the district court, review is limited to plain error.          See

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

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

There was no Booker error in this case because Machado-Bernal’s

sentence was enhanced based on his prior convictions.       See

Booker, 125 S. Ct. at 756, 769.    The district court’s application

of the Guidelines in their mandatory form constituted error that

is plain.    United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir. 2005).    However, Machado-Bernal has not shown that the

error affected his substantial rights as the record gives no

indication that the district court judge would have sentenced him

any differently had he known that the Guidelines were only

advisory.    See Mares, 402 F.3d at 522.    Therefore, Machado-Bernal

has not shown that the district court’s imposition of his

sentence constituted reversible plain error.      See id.

Accordingly, Machado-Bernal’s sentence is AFFIRMED.
