                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 22, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-41392
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RAUL GARCIA-CERVANTES,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-315-ALL
                      --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Raul Garcia-Cervantes appeals his guilty-plea sentence for

illegal reentry after deportation in violation of 8 U.S.C. § 1326

(a) and (b).   He argues that the “felony” and “aggravated felony”

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

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).        Garcia-

Cervantes also argues that, in light of United States v. Booker,

125 S. Ct. 738 (2005), the district court plainly erred in

sentencing him under a mandatory guidelines system.


     *
       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this opinion should not be published and is not precedent except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. 04-41392
                                  -2-

     Garcia-Cervantes acknowledges that his first argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), but he wishes to preserve the issue for Supreme Court

review in light of Apprendi.      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).     Thus, we

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.”      Dabeit, 231 F.3d at 984

(internal quotation marks and citation omitted).

     We review Garcia-Cervantes’s second argument, challenging

the imposition of his sentence under a mandatory sentencing

guidelines scheme, for plain error.      See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005); see also

United States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL

1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).     After Booker, it is

clear that application of the federal sentencing guidelines in

their mandatory form constitutes error that is plain.

Valenzuela-Quevedo, 407 F.3d at 733-34.     However, nothing in the

record indicates that the plain error affected Garcia-Cervantes’s

substantial rights.     See id.   Accordingly, Garcia-Cervantes’s

sentence is AFFIRMED.
