                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 17, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 04-51452
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

CARLOS ALBERTO QUIROZ-SANCHEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:04-CR-1785-ALL
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Carlos Alberto Quiroz-Sanchez (“Quiroz”) appeals the 46-

month sentence imposed subsequent to his entry of a guilty plea

to a violation of 8 U.S.C. § 1326.   Quiroz contends for the first

time on appeal that the district court erred, under United States

v. Booker, 125 S. Ct. 738 (2005), by sentencing him pursuant to a

guideline scheme that the district court believed was mandatory.

Quiroz asserts that the error was plain and affected his




     *
       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this opinion should not be published and is not precedent except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. 04-51452
                                  -2-

substantial rights and that we should exercise discretion and

correct the error.

     Our review is for plain error.     See United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517).    Quiroz must therefore show

“(1) error, (2) that is plain, and (3) that affects his

substantial rights.”     Mares, 402 F.3d at 520 (internal quotations

and citation omitted).

     To demonstrate that the plain error affected his substantial

rights, Quiroz has the burden of showing that the error “affected

the outcome of the district court proceedings.”     United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005) (internal

quotations and citation omitted), petition for cert. filed (July

25, 2005) (No. 05-5556).     He must demonstrate “that the

sentencing judge--sentencing under an advisory scheme rather than

a mandatory one--would have reached a significantly different

result.”   Mares, 402 F.3d at 521.

     Quiroz has not made the required showing.     See Valenzuela-

Quevedo, 407 F.3d at 733-34.    Quiroz has not identified any

grounds, and the record does not provide any indication “from

the sentencing judge’s remarks or otherwise,” to show that the

district court would have reached a different conclusion in a

post-Booker advisory guideline sentencing proceeding.        Mares,

402 F.3d at 522.   Accordingly, Quiroz has not met his burden of
                           No. 04-51452
                                -3-

showing that the error affected his substantial rights.   See

Valenzuela-Quevedo, 407 F.3d at 733-34.

      Quiroz contends that his sentence violates his right to due

process because it exceeds the maximum sentence authorized for

the offense that was charged in the indictment.   Quiroz asserts

that the fact of his prior conviction is an element of the

8 U.S.C. § 1326 offense that was not alleged in the indictment.

He contends that his 46-month sentence exceeds the maximum two-

year penalty authorized by 8 U.S.C. § 1326(a).    Quiroz challenges

the validity of Almendarez-Torres v. United States, 523 U.S. 224

(1998), but concedes that his argument is foreclosed and raises

the issue only to preserve it for Supreme Court review.

      The Supreme Court has not overruled Almendarez-Torres, and

we must follow it unless and until the Supreme Court overrules

it.   See United States v. Alfaro, 408 F.3d 204, 210-11 (5th Cir.

2005); United States v. Izaguirre-Flores, 405 F.3d 270, 277-78

(5th Cir. 2005), petition for cert. filed (July 22, 2005) (No.

05-5469).   Accordingly, Quiroz’s sentence is AFFIRMED.
