                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               June 3, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 04-50964
                         Summary Calendar


UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,

versus

ROBERT CARDENAS-TAPIA, also known as Roberto Cardenas-Tapia,

                               Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 2:04-CR-130-1-WWJ
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Robert Cardenas-Tapia challenges the sentence he received

following his guilty-plea conviction for illegally reentering the

United States, a violation of 8 U.S.C. § 1326.     Cardenas argues,

for the first time on appeal, that the district court plainly

erred under United States v. Booker, 125 S. Ct. 738 (2005), when

it sentenced him under a mandatory guideline sentencing scheme.

The argument is reviewed for plain error.      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this opinion should not be published and is not precedent except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. 04-50964
                                  -2-

Mares, 402 F.3d 511, 520 (5th Cir.), petition for cert. filed,

No. 04-9517 (U.S. Mar. 31, 2005).

     In light of Booker, the district court clearly erred in

computing Cardenas’s sentence under a mandatory guidelines

system.     See United States v. Valenzuela-Quevedo, ___ F.3d ___,

No. 03-41754, 2005 WL 941353, *4 (5th Cir. Apr. 25, 2005).

Nevertheless, because Cardenas has not demonstrated that the

district court would have imposed a different sentence had it

known that the sentencing guidelines were advisory only, he has

failed to demonstrate that the error affected his substantial

rights.**    Mares, 402 F.3d at 521-22.   Accordingly, Cardenas has

failed to carry his burden of demonstrating plain error.

     Cardenas concedes that the issue whether 8 U.S.C.

§ 1326(b)(1) & (b)(2) were rendered unconstitutional by Apprendi

v. New Jersey, 530 U.S. 466 (2000), and subsequent Supreme Court

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

523 U.S. 224, 235 (1998), and he raises it solely to preserve it

for 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).     We

therefore must follow Almendarez-Torres “unless and until the




     **
        Cardenas’s argument that Mares was wrongly decided is
unavailing. Absent en banc reconsideration or a superseding
contrary decision of the Supreme Court, one panel may not
overrule the decision of a prior panel. United States v. Ruff,
984 F.2d 635, 640 (5th Cir. 1993).
                          No. 04-50964
                               -3-

Supreme Court itself determines to overrule it.”   Dabeit,

231 F.3d at 984.

     AFFIRMED.
