                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   August 17, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 04-40801
                        Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

AGUSTIN CRUZ-AGUILAR, also known as
Emilio Avitio-Henes,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:04-CR-171-1
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Agustin Cruz-Aguilar appeals his sentence following his

guilty-plea conviction of illegal reentry, in violation of

8 U.S.C. § 1326(a) and (b)(2).   The district court sentenced him

to 63 months of imprisonment, two years of supervised release,

and a $100 special assessment.

     For the first time on appeal, Cruz-Aguilar argues that,

under United States v. Booker, 125 S. Ct. 738 (2005), this court

must vacate his sentence and remand for resentencing because the

     *
       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this opinion should not be published and is not precedent except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. 04-40801
                                 -2-

mandatory guideline regime was in place at the time of his

sentencing.   An unpreserved challenge to the application of the

formerly mandatory sentencing guidelines is reviewed for plain

error.   United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.

05-5556).

     The district court’s application of the guidelines in their

mandatory form constituted error that is “plain” for purposes of

satisfying the first two prongs of the plain error analysis.      Id.

Cruz-Aguilar also bears the burden of demonstrating “that the

sentencing judge--sentencing under an advisory scheme rather than

a mandatory one--would have reached a significantly different

result.”    See United States v. Mares, 402 F.3d 511, 521 (5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

Cruz-Aguilar has not made such a showing.

     Cruz-Aguilar also argues that 8 U.S.C. § 1326(b) is

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

(2000), because it does not require the fact of a prior felony or

aggravated-felony conviction to be charged in the indictment and

proved beyond a reasonable doubt.   As Cruz-Aguilar concedes, this

argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), and Almendarez-Torres was not overruled by

Apprendi.   See United States v. Sarmiento-Funes, 374 F.3d 336,

346 (5th Cir. 2004).    Accordingly, the judgment of the district

court is AFFIRMED.
