                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 19, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40784
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

RAMIRO GARCIA-CARDENAS,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 7:04-CR-22-ALL
                         --------------------

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

     Ramiro Garcia-Cardenas (Garcia) appeals his guilty-plea

conviction and sentence for being found in the United States

following deportation and removal, without having obtained the

consent of the Attorney General or the Secretary of the

Department of Homeland Security.    Garcia argues that 8 U.S.C.

§§ 1326(b)(1) & (b)(2) are unconstitutional and that Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), should be

overruled.     He also contends, in light of United States v.


     *
       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this opinion should not be published and is not precedent except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. 04-40784
                                 -2-

Booker, 125 S. Ct. 738 (2005), that the district court plainly

erred in sentencing him because the court believed that the

Federal Sentencing Guidelines were mandatory, rather than

advisory.

     Because Garcia raises these issues for the first time on

appeal, we review only for plain error.    See United States v.

Mares, __ F.3d __, No. 03-21035, 2005 WL 503715 at *7 (5th Cir.

Mar. 4, 2005), petition for cert. filed, No. 04-9517 (U.S. Mar.

31, 2005).    Although the decision in Almendarez-Torres has been

called into question, see Shepard v. United States, 125 S. Ct.

1254, 1264 (2005) (Thomas, J., concurring), the Supreme Court has

not overruled it.   Accordingly, Garcia’s first argument is

foreclosed.    See United States v. Rivera, 265 F.3d 310, 312 (5th

Cir. 2001).

     Garcia’s assertion that prejudice should be presumed from

the sentencing court’s Booker error is without merit.      See Mares,

2005 WL 503715 at *8-*9.   Garcia is not challenging the

calculation of his criminal history score or the characterization

of his prior conviction as an aggravated felony.   Although Garcia

argues that there is a reasonable probability that he would have

received a lower sentence under an advisory guidelines scheme, he

concedes that “[i]t is impossible to know for certain what the

judge might have done if freed of the constraints of the

mandatory Guidelines.”   Under Mares, this is insufficient to

establish that the error affected his substantial rights.      Mares,
                           No. 04-40784
                                -3-

2005 WL 503715 at *9.   Accordingly, Garcia has not established

plain error with respect to his sentence.

     AFFIRMED.
