                                                       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. 04-40549
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DANIEL GUTIERREZ-NIETO,
also known as Daniel Gutierrez,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-14-ALL
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Daniel Gutierrez-Nieto (“Gutierrez”) appeals the 40-month

sentence imposed following his guilty-plea conviction for illegal

reentry into the United States following deportation.      He argues,

for the first time on appeal, that the district court erred in

sentencing him under a mandatory guideline scheme, citing United

States v. Booker, 125 S. Ct. 738 (2005).

     Gutierrez asserts that the district court’s application of

the guidelines as mandatory is a “structural error” that is

     *
       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this opinion should not be published and is not precedent except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. 04-40549
                                 -2-

“insusceptible” of harmless error analysis.    Alternatively, he

asserts that the error should be presumed prejudicial.

Gutierrez’s arguments have been rejected by this court in United

States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005).       We

review for plain error.    See United States v. Valenzuela-Quevedo,

407 F.3d 728, 732-33 (5th Cir. 2005), petition for cert. filed

(July 25, 2005) (No. 05-5556).    The district court committed

error that is plain when it sentenced Gutierrez under a mandatory

guideline scheme.    See id. at 733; Martinez-Lugo, 411 F.3d at

600.    Gutierrez, however, fails to meet his burden of showing

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

See Valenzuela-Quevedo, 407 F.3d at 733-34; United States v.

Mares, 402 F.3d 511, 521-22 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517); see also United States v.

Bringier, 405 F.3d 310, 317 & n.4 (5th Cir. 2005), petition for

cert. filed (July 26, 2005)(No. 05-5535).

       As he concedes, Gutierrez’s argument that the sentencing

provisions in 8 U.S.C. § 1326(a) and (b) are unconstitutional is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998).    See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);

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

Accordingly, Gutierrez’s sentence is AFFIRMED.
