                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 22, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41169
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BERNANDINO FRIAS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-322-ALL
                      --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Bernandino Frias appeals his guilty-plea sentence for

illegal reentry after deportation in violation of 8 U.S.C. § 1326

(a) and (b).   He argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).       Frias

also argues that, in light of United States v. Booker, 125 S. Ct.

738 (2005), the district court plainly erred in sentencing him

under a mandatory guidelines system.


     *
       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this opinion should not be published and is not precedent except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. 04-41169
                                 -2-

       Frias acknowledges that his first argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

wishes to preserve the issue for Supreme Court review in light of

Apprendi.    Apprendi did not overrule Almendarez-Torres.     See

Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000).    Thus, we must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.”    Dabeit, 231 F.3d at 984 (internal quotation marks and

citation omitted).

       We review Frias’s second argument, challenging the

imposition of his sentence under a mandatory sentencing

guidelines scheme, for plain error.    See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005); see also

United States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL

1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).    After Booker, it is

clear that application of the federal sentencing guidelines in

their mandatory form constitutes error that is plain.

Valenzuela-Quevedo, 407 F.3d at 733.    Frias has not shown,

however, that the plain error affected his substantial rights.

See id. at 733-34.    Accordingly, Frias’s sentence is AFFIRMED.
