                                                        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. 04-40533
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

CRISTOBAL RAFAEL-QUERIAPA,

                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 7:03-CR-856-1
                         --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Cristobal Rafael-Queriapa appeals his conviction and

sentence for illegal reentry of an alien after having been

deported.   He argues that the provisions of 8 U.S.C. § 1326(b)

are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000) and that his indictment should have reflected a prior

conviction.    He also argues that his sentence is unconstitutional

under United States v. Booker, 125 S. Ct. 738 (2005), because it

was imposed pursuant to a mandatory guidelines scheme.


     *
       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this opinion should not be published and is not precedent except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. 04-40533
                                -2-

     Rafael’s arguments that the provisions of 8 U.S.C. § 1326(b)

are unconstitutional and that the prior conviction should have

been charged in his indictment are foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 247 (1998).

     Rafael challenges the Booker error as structural in nature

and argues that prejudice should be presumed.   This court

rejected that argument in United States v. Martinez-Lugo, 411

F.3d 597, 601 (5th Cir. 2005).   Our review is for plain error.

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

petition for cert. filed (Mar. 31, 2005) (No. 04-9517); 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 Rafael under a mandatory sentencing guidelines scheme.

Valenzuela-Quevedo, 407 F.3d at 733.   However, Rafael fails to

carry his burden of showing that this error affected his

substantial rights.   Id. at 733-34.   The district court made no

comments indicating that it would have imposed a lesser sentence

in the absence of mandatory guidelines.   Accordingly, the

judgment of the district court is AFFIRMED.
