                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                             June 21, 2005

                                                                       Charles R. Fulbruge III
                                                                               Clerk
                                     No. 04-50493
                                   Summary Calendar


                            UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                        versus

                      ROBERTO FRANCISCO RAMIREZ-SANCHEZ,

                                                           Defendant-Appellant.



              Appeal from the United States District Court
                    for the Western District of Texas
                       USDC No. 2:03-CR-817-1-AML


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

              Roberto Francisco Ramirez-Sanchez (“Ramirez”) pleaded

guilty   to    illegal      reentry    into     the    United   States    following

deportation.           He    was    sentenced     to     thirty-six      months     of

imprisonment. Ramirez argues that his sentence is unconstitutional

because it      was    enhanced      for   a   prior   aggravated     felony   under

8 U.S.C. § 1326(b).           Ramirez acknowledges that his argument was

rejected by the Supreme Court in Almendarez-Torres v. United




     *
            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opinion should not be published and is not precedent except under the limited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.
States, 523 U.S. 224 (1998), but argues that he is raising it to

preserve it for further review.

           In Almendarez-Torres, 523 U.S. at 235, the Supreme Court

held that a prior conviction is a sentencing factor under 8 U.S.C.

§ 1326(b) and not a separate element of a criminal offense.

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), did not overrule

Almendarez-Torres.    See Apprendi, 530 U.S. at 489-90; see also

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).                   The

Supreme Court’s decisions in Blakely v. Washington, 124 S. Ct. 2531

(2004), and United States v. Booker, 125 S. Ct 738 (2005) did not

overrule Almendarez-Torres.          See    Booker,    125    S.   Ct.   at   756;

Blakely, 124 S. Ct. at 2536-43.             This court does not have the

authority to overrule Almendarez-Torres.             See Dabeit, 231 F.3d at

984.   Thus, Ramirez’s argument is foreclosed.

           For the first time on appeal, Ramirez argues that his

sentence is unconstitutional, in light of Booker, because his

sentence was increased based upon facts that he did not admit.

Specifically, he contends that the district court’s determination,

pursuant to U.S.S.G. § 4A1.1(d), that he was on parole at the time

he committed the instant offense violated his Sixth Amendment

rights.   He further contends that his sentence is unconstitutional

because it was imposed pursuant to a mandatory application of the

sentencing guidelines.

           Because   Ramirez   did    not    raise    these    issues    in   the

district court, this court reviews the arguments for plain error.

                                      2
See United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517); United

States v. Valenzuela-Quevedo, ___ F.3d ___, No. 03-41754, 2005 WL

941353 *4 (5th Cir. Apr. 25, 2005).             Thus, Ramirez must show:

(1) an error; (2) that is clear or plain; (3) that affected his

substantial rights; and (4) that seriously affected the fairness,

integrity or public reputation of his judicial proceedings. United

States v. Olano, 507 U.S. 725, 732-35 (1993).

           Ramirez makes no showing that the district court would

likely have sentenced him differently under the Booker advisory

scheme. Similarly, there is no indication from the court’s remarks

at   sentencing   that   the   court   would   have   reached   a   different

conclusion.   Thus, Ramirez has not demonstrated that his substan-

tial rights were affected, and he has thus failed to carry his

burden under plain-error review.           See Mares, 402 F.3d at 521-22;

Valenzuela-Quevedo, 2005 WL 941353 at *4.          Accordingly, Ramirez’s

sentence is AFFIRMED.




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