                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2282
                                    ___________

United States of America,         *
                                  *
           Appellee,              *
                                  * Appeal from the United States
     v.                           * District Court for the Western
                                  * District of Arkansas.
Donaciano Rodriguez-Mercado,      *
                                  *      [UNPUBLISHED]
           Appellant.             *
                             ___________

                              Submitted: June 7, 2005
                                 Filed: June 17, 2005
                                  ___________

Before BYE, RILEY, and COLLOTON, Circuit Judges.
                            ___________

PER CURIAM.

       Donaciano Rodriguez-Mercado (Rodriguez) appeals the sentence the district
     1
court imposed following his guilty plea to illegally reentering the United States after
having been convicted of an aggravated felony and deported, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). Rodriguez’s counsel initially moved to withdraw and filed a
brief under Anders v. California, 386 U.S. 738 (1967). In two subsequently filed
supplemental briefs, counsel argues (1) Rodriguez’s sentence violates the Sixth
Amendment, in light of United States v. Booker, 125 S. Ct. 738 (2005), because the

         1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
district court made findings regarding the existence and nature of his prior conviction,
thereby enhancing his sentence; and (2) Shepard v. United States, 125 S. Ct. 1254
(2005), implicitly overruled Almendarez-Torres v. United States, 523 U.S. 224, 226-
27 (1998).

       Rodriguez’s Sixth Amendment argument was not raised below, and there is no
plain error, because Booker does not require a jury to find the fact of a prior
conviction. See Booker, 125 S. Ct. at 756; cf. United States v. Marcussen, 403 F.3d
982, 984 (8th Cir. 2005) (rejecting argument that nature of prior conviction is to be
treated differently from fact of prior conviction; once sentencing court determines
prior conviction exists, it is legal question for court whether crime meets “crime of
violence” definition of U.S.S.G. § 4B1.2). Also, we recently held Booker and
Shepard did not overrule Almendarez-Torres. See United States v. Patterson, No. 04-
1178, 2005 WL 1123555, at *2 (8th Cir. May 13, 2005).

      In the Anders brief, counsel raises as issues (1) whether the district court
afforded Rodriguez an opportunity to dismiss appointed counsel and retain new
counsel, and (2) whether the court properly conducted the plea and sentencing
hearings. These arguments fail. First, the motion transcript shows that the court gave
Rodriguez the opportunity to hire new counsel. Second, any omissions in the plea
colloquy did not affect Rodriguez’s substantial rights. See United States v.
Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004); United States v. Vonn, 535 U.S.
55, 58-59 (2002).

      Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Thus, we grant counsel’s motion to
withdraw, and we affirm.
                      ______________________________




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