                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 17, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40159
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS VILLARREAL-MARTINEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Eastern District of Texas
                     USDC No. 4:03-CR-85-ALL
                       --------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Jose Luis Villarreal-Martinez (“Villarreal”) appeals his

conviction and sentence, following a jury trial, for illegally

re-entering the United States after having been deported and

after having been convicted of an “aggravated felony,” in

violation of 8 U.S.C. § 1326(a) and (b).    The district court

sentenced him to 77 months in prison and three years of

supervised release.   For the first time on appeal, Villarreal

contends that, under United States v. Booker, 125 S. Ct. 738

(2005), the district court violated his Sixth Amendment rights by



     *
       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this opinion should not be published and is not precedent except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. 04-40159
                                    -2-

imposing a 16-level Sentencing Guidelines increase based on his

aggravated-felony conviction, without submitting that factor for

proof to the jury.

     In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the

Supreme Court held that, “‘[o]ther than the fact of a prior

conviction, any fact that increases the penalty beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.’” (emphasis added).       In Blakely

v. Washington, 124 S. Ct. 2531, 2537 (2004), the Supreme Court

held that “the ‘statutory maximum’ for Apprendi purposes is the

maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the

defendant.”   In Booker, 125 S. Ct. at 756, the Supreme Court

extended the Blakely holding to the Guidelines, holding that

“[a]ny fact (other than a prior conviction) which is necessary to

support a sentence authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved beyond a reasonable doubt.”      (emphasis added).   The Court

excised 18 U.S.C. § 3553(b)(1) of the Sentencing Reform Act,

rendering the guidelines effectively advisory rather than

mandatory.    Id. at 764-65.    Under Booker, district courts are

still required to consider the guidelines, and Booker applies to

this direct appeal.    See id. at 757-69.

     A challenge under Booker that is raised for the first time

on appeal, like Villarreal’s, is reviewable only for plain error.

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

for cert. filed, No. 04-9517 (Mar. 31, 2005).      Villarreal has not
                           No. 04-40159
                                -3-

established error, plain or otherwise, with respect to the

Sentencing Guidelines in his case, because “Booker explicitly

excepts from Sixth Amendment analysis” the fact of a prior

conviction.   See United States v. Guevara,      F.3d   , No. 03-

11299 (5th Cir. May 2, 2005), 2005 WL 1009772 at *6.

     The conviction and sentence are AFFIRMED.
