                                                       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. 04-40940
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ELIAS PERDOMO-CASTRO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-130-ALL
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Elias Perdomo-Castro (“Perdomo”) appeals following his

guilty plea to a charge of being present illegally in the United

States after deportation, in violation of 8 U.S.C. § 1326.

Perdomo argues that the “felony” and “aggravated felony”

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

He correctly acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).




     *
       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this opinion should not be published and is not precedent except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. 04-40940
                                 -2-

See United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.),

cert. denied, 540 U.S. 935 (2003).

       Perdomo argues that the district court committed reversible

error by imposing a sentence pursuant to the mandatory Federal

Sentencing Guidelines system that was held unconstitutional in

United States v. Booker, 125 S. Ct. 738 (2005).    We review for

plain error.    See United States v. Valenzuela-Quevedo, 407 F.3d

728, 732 (5th Cir. 2005), petition for cert. filed (July 25,

2005) (No. 05-5556).

        The district court committed error that is plain by

sentencing Perdomo under a mandatory Sentencing Guidelines

scheme.    See id.; United States v. Mares, 402 F.3d 511, 520-21

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.

04-9517).    However, Perdomo has not carried his burden of showing

that the district court’s error affected his substantial rights.

See Valenzuela-Quevedo, 407 F.3d at 733-34; Mares, 402 F.3d at

521.

       Accordingly, the district court’s judgment is AFFIRMED.
