                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 28, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41168
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

GUADALUPE FONSECA-SANCHEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-220-ALL
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Guadalupe Fonseca-Sanchez (Fonseca) appeals from his guilty

plea conviction for being unlawfully found in the United States

following deportation, having previously been convicted of an

aggravated felony.   Fonseca contends that the district court

erred by considering a prior assault conviction in imposing his

sentence, after having sustained Fonseca’s objection to the

conviction.    He also urges the overruling of Almendarez-Torres v.

United States, 523 U.S. 224 (1998) and requests that the rule of


     *
       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this opinion should not be published and is not precedent except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. 04-41168
                                 -2-

Blakely v. Washington, 124 S. Ct. 2531 (2004) be applied to the

Federal Sentencing Guidelines.

     Fonseca first claims that the district court incorrectly

believed that the applicable guideline range was 21-27 months

rather than 18-24 months.   This claim is wholly without merit, as

the court clearly stated he was sentencing Fonseca to the high

end of the guideline range at 24 months.

     Fonseca argues that the district court relied on the

material unreliable information of the assault conviction in

imposing his sentence.   In reviewing a sentence imposed under the

guidelines, this court reviews the district court’s application

or interpretation de novo and factual findings for clear error.

United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).     The

recent decision in United States v. Booker, 125 S. Ct. 738

(2005), has not altered the standard of review in cases where the

district court imposed a sentence under the guidelines.     United

States v. Villegas,      F.3d    , 03-21220, 2005 WL 627963, *4-5

(5th Cir. Mar. 17, 2005).

     The record reveals that the district court, while sentencing

Fonseca to the high end of the guideline range, did not rely on

the assault conviction when imposing his sentence.   Rather, the

court’s comments on the prior conviction were used to dispel

Fonseca’s argument that he was entitled to a downward departure

from the guidelines.   Regardless, the ruling by the district

court sustaining the objection had no practical effect on
                            No. 04-41168
                                 -3-

Fonseca’s sentencing range.   Nothing indicates that the court’s

decision to sentence Fonseca at the high end of the range was

based on the contested assault conviction.

     Fonseca next asserts that Almendarez-Torres v. United States

should be overruled in light of Blakely v. Washington and

Apprendi v. New Jersey, 520 U.S. 466 (2000).      He acknowledges

that this issue is foreclosed but raises it to preserve for

further review.   Neither Apprendi nor Blakely overruled

Almendarez-Torres.    This issue is foreclosed.

     Finally, Fonseca argues for the first time on appeal that

Blakely should be applied to the Federal Sentencing Guidelines.

The United States Supreme Court applied the rule of Blakely to

the guidelines in United States v. Booker, 125 S. Ct. 738, 756

(2005).   Fonseca does not argue the application of Booker to his

case other than simply stating the guidelines are

unconstitutional.    Therefore he presents no issue for this court

to review and, in any event, falls woefully short of

demonstrating plain error that would warrant a reversal of his

sentence.   See United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005).



     Accordingly, Fonseca’s sentence is AFFIRMED.
