                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                      June 16, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             04-40709
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                       JOSE ARNULFO AYESTA,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                        (5:04-CR-117-ALL)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Arnulfo Ayesta appeals his guilty-plea conviction and

sentence for being found in the United States following deportation

in violation of 8 U.S.C. § 1326(a) & (b).   He contends the district

court committed reversible plain error in imposing his sentence

pursuant to the mandatory United States Sentencing Guidelines held

unconstitutional in United States v. Booker, 125 S. Ct. 738 (2005).

Because Ayesta did not raise this issue in the district court, we




     *
       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this opinion should not be published and is not precedent except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.
review only for plain error.     See United States v. Vonn, 535 U.S.

55, 59 (2002).

     The district court erred in imposing Ayesta’s sentence under

the mandatory Guidelines scheme, and the error was obvious after

Booker.    See United States v. Valenzuela-Quevedo, ___ F.3d ___,

2005 WL 941353, at *4 (5th Cir. 25 Apr. 2005).            Ayesta has not

shown, however, that the error affected his substantial rights.

Restated, he has not shown the district court would have imposed a

different or lesser sentence under a Booker advisory regime.           See

id. at **4-5.    Therefore, he has not shown reversible plain error.

     Ayesta also contends the “felony” and “aggravated felony”

sentencing enhancements under 8 U.S.C. § 1326(b) are facially

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).

He acknowledges this argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998), but seeks to preserve it for

possible   Supreme   Court   review.    Apprendi    did    not    overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States

v. Sarmiento-Funes, 374 F.3d 336, 346 (5th Cir. 2004).           This court

must follow Almendarez-Torres, “unless and until the Supreme Court

itself determines to overrule it.”     United States v. Mancia-Perez,

331 F.3d 464, 470 (5th Cir.) (internal quotation and citation

omitted), cert. denied, 540 U.S. 935 (2003).       Accordingly, Ayesta

has not established error with respect to his sentence under 8

U.S.C. § 1326(b).

                                   2
    AFFIRMED




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