                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 26, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-50353
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN O. CASTELLANOS, also known as Osmin Castellanos,
also known as Juan Osmin,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 3:05-CR-1927
                       --------------------

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Juan O. Castellanos appeals the 37-month sentence he

received following his guilty-plea conviction for illegal

reentry, in violation of 8 U.S.C. § 1326.   He contends that the

district court violated his constitutional rights as set forth in

United States v. Booker, 543 U.S. 220 (2005), by finding that his

prior New York rape conviction enhanced his sentence without

submitting the question to a jury and by sentencing him under a

mandatory version of the Guidelines.


     *
       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this opinion should not be published and is not precedent except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. 06-50353
                                 -2-

     Sentencing in the instant case occurred post-Booker, and the

district court thus did not err in making factual findings

relevant to sentencing.   See United States v. Mares, 402 F.3d

511, 519 (5th Cir. 2005).   Castellanos’s assertion that the

district court sentenced him under a mandatory version of the

Guidelines is wholly conclusional and is unsupported by the

record.   To the extent that Castellanos argues that the district

court erred in determining that his rape conviction is a “crime

of violence” for enhancement purposes, the argument fails.      See

U.S.S.G. § 2L1.2, comment. n.1B(iii).      Additionally, the district

court did not err in refusing to entertain Castellanos’s implicit

challenge to the validity of his prior rape conviction when the

challenge was not grounded in the denial of counsel.      See Custis

v. United States, 511 U.S. 485, 496-97 (1994).      To the extent

that Castellanos argues, for the first time on appeal, that the

use of his prior rape conviction for enhancement purposes

violates the Double Jeopardy Clause, the argument also fails.

See Sudds v. Maggio, 696 F.2d 415, 417 (5th Cir. 1983); see also

United States v. Hawkins, 69 F.3d 11, 13-15 (5th Cir. 1995).

     This court lacks jurisdiction to consider Castellanos’s

argument that the district court erred in failing to downwardly

depart from the guidelines range based on the fact that he

reentered the U.S. as a refugee in fear for his life.      See United

States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006).

     AFFIRMED.
