                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 9, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-50909
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ARIEL TAKAJASI-MALDONADO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        (2:04-CR-334-1-AML)
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Jose Ariel Takajasi-Maldonado appeals his

sentence for reentry into the United States following deportation,

in violation of 8 U.S.C. 1326(a) and (b)(2).    He argues for the

first time on appeal that, in light of United States v. Booker, 125

S. Ct. 738 (2005), his sentence should be vacated and his case

remanded for resentencing because the district court plainly erred

by enhancing his sentence based on facts not determined by a jury

and which he did not admit.   He also argues for the first time on


     *
       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this opinion should not be published and is not precedent except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.
appeal that his sentence should be vacated because the district

court plainly erred by treating the guidelines as mandatory.

Finally,     Takajasi-Maldonado     claims          that     the       “felony”     and

“aggravated     felony”    provisions        of    8   U.S.C.      §     1326(b)    are

unconstitutional.

     Takajasi-Maldonado’s claim that the district court plainly

erred by enhancing his sentence based on facts not determined by a

jury and which he did not admit is unavailing because he failed to

show that “the sentencing judge--sentencing under an advisory

scheme     rather   then   a   mandatory          one--would      have    reached     a

significantly different result.”             See United States v. Mares, 402

F.3d 511, 520-522 (5th Cir.), petition for cert. filed, No. 04-9517

(U.S. Mar. 31, 2005).          His argument that the district court’s

application of the guidelines as mandatory was plain error also

fails because he did not show that the district court would have

imposed a different sentence had the guidelines been advisory only.

See United States v. Valenzuela-Quevedo,                   F.3d        (5th Cir. Apr.

25, 2005)(No. 03-41754), 2005 WL 941353 at *4.

     Takajasi-Maldonado’s        argument           that    the        “felony”     and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional     is    foreclosed       by    Almendarez-Torres        v.   United

States, 523 U.S. 224, 235 (1998). Accordingly, the judgment of the

district court is

AFFIRMED.



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