                                                       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. 04-51051
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROLANDO CALDERILLA-REGALADO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 2:04-CR-226-1-WWJ
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Rolando Calderilla-Regalado appeals his sentence following

his guilty-plea conviction of illegal reentry, in violation of

8 U.S.C. § 1326(a) and (b)(2).   The district court sentenced him

to 30 months of imprisonment, three years of supervised release,

and a $100 special assessment.

     Calderilla-Regalado argues that his sentence violates his

due process rights, under Apprendi v. New Jersey, 530 U.S. 466

(2000), because he was sentenced based on a prior aggravated


     *
       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this opinion should not be published and is not precedent except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. 04-51051
                               -2-

felony not alleged in his indictment.    As Calderilla-Regalado

concedes, this argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998).     We must follow

Almendarez-Torres “‘unless and until the Supreme Court itself

determines to overrule it.’”     United States v. Mancia-Perez, 331

F.3d 464, 470 (5th Cir. 2003) (citation omitted).

     For the first time on appeal, Calderilla-Regalado argues

that, under United States v. Booker, 125 S. Ct. 738 (2005), this

court must vacate his sentence and remand for resentencing

because the district court violated his Sixth Amendment rights

when it sentenced him based on its finding that he was on

supervised release at the time he committed the offense.    He also

argues that the district court erred by sentencing him under the

pre-Booker mandatory guideline regime.    Because Calderilla-

Regalado did not preserve the arguments in the district court,

our review is for plain error.    See United States v. Mares, 402

F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517).

     The district court’s application of the guidelines in their

mandatory form constituted error that is “plain” for purposes of

satisfying the first two prongs of the plain error analysis.

United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.

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

Calderilla-Regalado also bears the burden of demonstrating “that

the sentencing judge--sentencing under an advisory scheme rather
                           No. 04-51051
                                -3-

than a mandatory one--would have reached a significantly

different result.”   See Mares, 402 F.3d at 521.   Calderilla-

Regalado has not made such a showing with respect to his Sixth

Amendment claim or his claim regarding the mandatory application

of the guidelines.   Accordingly, the judgment of the district

court is AFFIRMED.
