                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                              Charles R. Fulbruge III
                                                                      Clerk
                                No. 05-40691
                            Conference Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

JOSE LUIS LOPEZ-GARCES,

                                        Defendant-Appellant.

                            --------------------
               Appeal from the United States District Court
                    for the Southern District of Texas
                         USDC No. 5:04-CR-2323-ALL
                            --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

       Jose Luis Lopez-Garces (Lopez) appeals his sentence imposed

following his guilty plea for illegal reentry after deportation,

in violation of 8 U.S.C. § 1326(b)(2) and 6 U.S.C. §§ 202 and

507.       Lopez was sentenced to 50 months of imprisonment and three

years of supervised release.

       Lopez asserts for the first time on appeal that his prior

conviction for transporting illegal aliens should have resulted

in an 8-level aggravated felony enhancement pursuant to U.S.S.G.


       *
       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this opinion should not be published and is not precedent except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. 05-40691
                                -2-

§ 2L1.2(b)(1)(C), instead of a 16-level alien smuggling offense

enhancement under § 2L1.2(b)(1)(A)(vii).   Even though the

Guidelines are advisory after United States v. Booker, 543 U.S.

220 (2005), this court continues to review the sentencing court’s

interpretation and application of the Guidelines de novo and

factual findings with respect to the application of adjustments

for clear error.   United States v. Villanueva, 408 F.3d 193, 202,

203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005).

     Because Lopez raises this issue for the first time on

appeal, however, the standard of review is plain error.      United

States v. Olano, 507 U.S. 725, 731-32 (1993).     In order to show

that the district court plainly erred, Lopez must show the

existence of an error, that the error was clear and obvious, and

that the error affected his substantial rights.     Id. at 732-35.

If these conditions are met, then this court will reverse the

error only if it seriously affects the “fairness, integrity, or

public reputation of judicial proceedings.”     Id. at 735-37.

     Under the plain language of § 2L1.2, if a prior conviction

falls in two categories of enhancements, the greater enhancement

applies.   While Lopez’s prior conviction for transporting illegal

aliens may be an aggravated felony and qualify for an 8-level

enhancement, it is also an alien smuggling offense and qualifies

for a 16-level enhancement.   See United States v. Solis-

Campozano, 312 F.3d 164, 167-68 (5th Cir. 2002).    As a result,
                           No. 05-40691
                                -3-

the district court did not err in applying the 16-level alien

smuggling enhancement to Lopez’s base offense level.

     Lopez also asserts that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b) are unconstitutional.      Lopez’s

constitutional challenge is foreclosed by Almendarez-Torres v.

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

v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied,

126 S. Ct. 298 (2005).   Lopez properly concedes that his argument

is foreclosed, but he raises it here to preserve it for further

review.

     Lopez further asserts that his sentence is excessive and

therefore unreasonable under Booker.    The district court

considered factors in addition to the sentencing range and

sentenced Lopez to 50 months of imprisonment.       See United States

v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct.

43 (2005).   This sentence is within the properly calculated

advisory guidelines range and is presumptively reasonable.

United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).

Lopez has failed to demonstrate that his properly calculated

guidelines sentence was unreasonable.     See id.

     The district court’s judgment is AFFIRMED.
