                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 20, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-41122
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ANDRES GILBERTO GARZA-LOPEZ,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-79-ALL
                      --------------------

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

     Andres Gilberto Garza-Lopez (Garza) appeals his guilty plea

conviction and sentence for unlawfully attempting to enter the

United States following deportation and removal and after having

been convicted of an aggravated felony, without having obtained

the consent of the Attorney General or the Secretary of the

Department of Homeland Security.    Garza received a 16-level

sentence enhancement due to his prior conviction for attempt to

commit murder.     See U.S.S.G. § 2L1.2(b)(1)(A)(ii).    He was


     *
       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this opinion should not be published and is not precedent except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. 04-41122
                                  -2-

sentenced to 46 months of imprisonment and three years of

supervised release.    Garza argues, for the first time on appeal,

that Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), should be overruled, and that Blakely v. Washington, 124

S. Ct. 2531 (2004), should be held to apply to the Federal

Sentencing Guidelines.

     Because Garza raises these issues for the first time on

appeal, we review only for plain error.     See United States v.

Mares, __ F.3d __, No. 03-21035, 2005 WL 503715 at *7 (5th Cir.

Mar. 4, 2005), petition for cert. filed, No. 04-9517 (U.S. Mar.

31, 2005).   Although the decision in Almendarez-Torres has been

called into question, see Shepard v. United States, 125 S. Ct.

1254, 1264 (2005) (Thomas, J., concurring), the Supreme Court has

not overruled it.    Accordingly, Garza’s argument is foreclosed.

See United States v. Rivera, 265 F.3d 310, 312

(5th Cir. 2001).

     Garza contends that if Almendarez-Torres is overruled and

Blakely is held to apply to the Federal Sentencing Guidelines, he

may not be sentenced based on any prior convictions to which he

does not admit or that are not found by a jury beyond a

reasonable doubt.     Thus, Garza challenges only the fact of his

prior convictions.    In United States v. Booker, 125 S. Ct. 738,

764 (2005), the Supreme Court did apply Blakely to the Federal

Sentencing Guidelines.    However, because Almendarez-Torres has

not been overruled, Garza received zero criminal history points
                           No. 04-41122
                                -3-

due to the age of his prior convictions, and Garza is not

challenging the characterization of his prior conviction for

attempt to commit murder as a violent felony, he has not

established error, plain or otherwise, with respect to his

conviction and sentence.

     AFFIRMED.
