                                                       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. 04-41536
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JORGE ALBERTO SALGADO-AVILA,
also known as Jose Ramirez-Avila,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:04-CR-273-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Jorge Alberto Salgado-Avila appeals his guilty-plea

conviction and sentence for being a previously deported alien

found in the United States illegally.   Salgado-Avila argues that

the district court plainly erred in applying the Sentencing

Guidelines in a mandatory manner.   He contends that, because this

error was structural in nature, prejudice should be presumed, and

we should exercise our discretion to reverse the sentence.        He

also argues that in the event that this court holds that United


     *
       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this opinion should not be published and is not precedent except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. 04-41536
                                -2-

States v. Infante, 404 F.3d 376 (5th Cir. 2005), and United

States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517), control the outcome of his

appeal, he wishes to preserve for possible future review his

argument that those cases were wrongly decided and conflict with

other circuits.

     Here, the district court erred by imposing a sentence

pursuant to a mandatory application of the sentencing guidelines.

See United States v. Booker, 125 S. Ct. 738, 768 (2005); see also

Mares, 402 F.3d at 520-21 & n.9.   However, Salgado-Avila has not

established that this error affected his substantial rights

because the record does not demonstrate that the sentencing court

would have imposed a different sentence had it been proceeding

under an advisory guideline scheme.   See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733-34 (5th Cir. 2005),

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

     Salgado-Avila also argues that, given Apprendi v. New

Jersey, 530 U.S. 466 (2000), the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

He concedes that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

the issue for possible further review.    Apprendi did not overrule

Almendarez-Torres.   See Apprendi, 530 U.S. at 489-90.   The

district court’s judgment is AFFIRMED.
