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

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41659
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MANUEL HINOJOSA-SOTO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 7:04-CR-537
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Manuel Hinojosa-Soto (“Hinojosa”) appeals his sentence under

8 U.S.C. § 1326(a) and (b) for illegal reentry into the United

States after having been deported following a conviction for an

aggravated felony.   He asserts two bases for the appeal.

     Hinojosa argues for the first time on appeal that the

district court’s belief during sentencing that the United States

Sentencing Guidelines were mandatory, rather than advisory,

requires reversal by this court under United States v. Booker,


     *
       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this opinion should not be published and is not precedent except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. 04-41659
                                  -2-

125 S. Ct. 738 (2005).    Review is for plain error.   See United

States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005), cert.

denied, ___ S. Ct. ___ (Oct. 11, 2005) (No. 05-6242).      Hinojosa’s

sentence, imposed pursuant to mandatory guidelines, constitutes

error.   See id.   Hinojosa asserts that the error is structural,

or at least presumptively prejudicial, such that he is not

required to show prejudice.     As he acknowledges, this argument is

foreclosed.   See id. at 601.    He admits that he cannot show that

his sentence likely would have been different under an advisory

application of the Guidelines.     See United States v. Mares, 402

F.3d 511, 521-22 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

     Hinojosa also asserts for the first time on appeal that the

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

are unconstitutional.    The Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

controls this issue.     We must follow Almendarez-Torres “unless

and until the Supreme Court itself determines to overrule it.”

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Thus, this issue is also foreclosed.

     The district court’s judgment is AFFIRMED.
