                                                       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. 04-40944
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ISRAEL RANGEL-ESPINOZA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-945-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Israel Rangel-Espinoza (Rangel-Espinoza) appeals his guilty-

plea conviction and sentence for illegal reentry following

deportation in violation of 8 U.S.C. § 1326.

     For the first time on appeal, Rangel-Espinoza contends that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).     As Rangel-Espinoza concedes, this

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


     *
       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this opinion should not be published and is not precedent except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. 04-40944
                                -2-

523 U.S. 224, 247 (1998); United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000).

     Rangel-Espinoza also contends, for the first time on appeal,

that the district court committed reversible plain error when it

sentenced him pursuant to the mandatory United States Sentencing

Guidelines system held unconstitutional in United States v.

Booker, 125 S. Ct. 738 (2005).   He argues that the error was

plain, structural, and presumptively prejudicial.   We review for

plain error.   See United States v. Valenzuela-Quevedo, 407 F.3d

728, 732 (5th Cir. 2005), petition for cert. filed (July 25,

2005)(No. 05-5556).

     The district court erred when it sentenced Rangel-Espinoza

pursuant to the mandatory Guidelines system.   See id. at 733.

However, the error was not structural or presumptively

prejudicial.   See United States v. Martinez-Lugo, 411 F.3d

597, 601 (5th Cir. 2005); United States v. Malveaux, 411 F.3d

558, 560 n.9 (5th Cir. 2005), petition for cert. filed (July 11,

2005) (No. 05-5297).   Further, Rangel-Espinoza has failed to

point to anything in the record indicating that the district

court would have reached a different conclusion had it known that

the Sentencing Guidelines were advisory.   See United States v.

Mares, 402 F.3d 511, 521-22 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517).   Although the district court

sentenced Rangel-Espinoza at the lowest end of the guideline

range, it found no reason to depart from that range.     See United
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                                  -3-

States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir. 2005),

petition for cert. filed (July 26, 2005) (No. 05-5535).

Therefore, Rangel-Espinoza has not demonstrated that his

substantial rights were affected, and he has failed to establish

plain error.     See Mares, 402 F.3d at 522.

     AFFIRMED.
