                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 22, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-20818
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE DIAZ-RENDON,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:04-CR-98-ALL
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Diaz-Rendon appeals his guilty-plea conviction and

sentence for illegal reentry following deportation.     Diaz-Rendon

contends that his sentence is invalid in light of United States

v. Booker, 125 S. Ct. 738 (2005), because the sentencing judge

applied the sentencing guidelines as if they were mandatory.

Because Diaz-Rendon did not raise this issue in the district

court, we review it only for plain error.     United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005); see also


     *
       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this opinion should not be published and is not precedent except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. 04-20818
                                -2-

United States v. Malveaux, ___F.3d___, No. 03-41618, 2005 WL

1320362 (5th Cir. Apr. 11, 2005).

     Diaz-Rendon fails to identify anything in the record to

suggest that his sentence would have been any less had the court

applied the sentencing guidelines as advisory rather than

mandatory.   Valenzuela-Quevedo, 407 F.3d at 733-34.    He thus

fails to establish prejudice to his substantial rights.        See id.

     Diaz-Rendon argues pursuant to Apprendi v. New Jersey, 530

U.S. 466 (2000), that Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998), should be overruled.    He concedes that his

constitutional argument is foreclosed by Almendarez-Torres, and

he raises it solely to preserve its further review by the Supreme

Court.

     Apprendi did not overrule Almendarez-Torres.      See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000).   The Supreme Court’s recent decisions in Shepard

v. United States, 125 S. Ct. 1254, 1262-63 & n.5 (2005), Booker,

and Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004), also did

not overrule Almendarez-Torres.     We therefore must follow

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.”   Dabeit, 231 F.3d at 984 (internal

quotation marks and citation omitted).    The judgment of the

district court is AFFIRMED.
