                                                       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. 04-40169
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN RODRIGUEZ-MENDEZ,
also known as Gregorio Hernandez-Martinez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:03-CR-824-1
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Juan Rodriguez-Mendez appeals his sentence imposed following

his guilty plea conviction for illegal reentry into the United

States following deportation.   Rodriguez argues for the first

time on appeal and pursuant to Apprendi v. New Jersey, 530 U.S.

466 (2000) that the sentencing provisions of 8 U.S.C. § 1326(b)

are unconstitutional.   He concedes that this issue is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and



     *
       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this opinion should not be published and is not precedent except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. 04-40169
                               -2-

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

Court.

     Rodriguez also argues that he was sentenced under the

unconstitutional mandatory guidelines system and that the error

constitutes plain error in light of Booker.   Rodriguez further

argues that he should not be required to show a reasonable

probability of prejudice because a Booker error is structural and

insusceptible of harmless error analysis.   Rodriguez contends

that even if the error was not structural, it affected his

substantial rights and the fairness and integrity of the judicial

proceeding.

     We review for plain error.   Sentencing a defendant pursuant

to a mandatory guidelines scheme, without an accompanying Sixth

Amendment violation, constitutes “Fanfan” error.   See United

States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).

     The court has rejected the argument that Fanfan error is

structural and presumptively prejudicial error, holding that it

is instead subject to the same plain error analysis set forth in

United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

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

United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.

2005).

     Rodriguez has met the first two prongs of the plain error

test because Fanfan error is “error” that is “plain.”    See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.
                           No. 04-40169
                                -3-

2005), petition for cert. filed (July 25, 2005) (No. 05-5556).

In order to meet the third prong of the analysis and show that

the error affected his substantial rights, Rodriguez bears the

burden of showing “that the sentencing judge--sentencing under an

advisory scheme rather than a mandatory one--would have reached a

significantly different result.”   Mares, 402 F.3d at 520-21.

Rodriguez has failed to make that showing and, thus, has failed

to show plain error.   See United Stares v. Bringier, 405 F.3d

310, 317 n.4 (5th Cir. 2005), petition for cert. filed (July 26,

2005) (No. 05-5535).

     AFFIRMED.
