                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 3, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-50893
                           Summary Calendar


UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

MISAEL GARCIA-CHAPA

                      Defendant - Appellant

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                       USDC No. 2:04-CR-137-1
                        --------------------

Before KING, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Misael Garcia-Chapa (“Garcia”) appeals his sentence imposed

following his guilty plea to illegally re-entering the United

States after having been deported, in violation of 8 U.S.C.

§ 1326.   The district court sentenced Garcia to 70 months of

imprisonment and three years of supervised release.

     Garcia asserts that, under Apprendi v. New Jersey, 530 U.S.

466 (2000) and its progeny, 8 U.S.C. § 1326(b) is

unconstitutional because it permits a sentencing judge to

increase a sentence beyond the statutory maximum based on a

     *
       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this opinion should not be published and is not precedent except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. 04-50893
                                 -2-

factor that need not be submitted to a jury for proof or admitted

by the defendant.    Garcia concedes that this argument is

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

235 (1998), but he seeks to preserve the issue for possible

Supreme Court review.    This court must follow Almendarez-Torres

“‘unless and until the Supreme Court itself determines to

overrule it.’”   United States v. Izaguirre-Flores, 405 F.3d 270,

277-78 (5th Cir. 2005) (citation omitted).

     Garcia argues that his sentence was increased under the

Sentencing Guidelines, in violation of the Sixth Amendment, based

on a factor that was neither submitted to a jury for proof beyond

a reasonable doubt nor admitted by Garcia.    He also argues that

the district court erred by sentencing him under the pre-Booker

mandatory guideline regime.    Because Garcia did not preserve

these 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 (U.S. Mar. 31, 2005) (No.

04-9517).   If it is assumed arguendo that the Booker rule is

implicated by the addition of criminal history points based

Garcia’s having committed the instant offense within two years

after having been discharged from a prior prison term, then the

error was “plain.”    Id. at 520-21.   Moreover, 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).       Garcia
                           No. 04-50893
                                -3-

also bears the burden of showing that his “substantial rights”

were violated, such “that the sentencing judge--sentencing under

an advisory scheme rather than a mandatory one--would have

reached a significantly different result.”   See Mares, 402 F.3d

at 521; see also United States v. Bringier, 405 F.3d 310, 317-18

n.4 (5th Cir. 2005).   Garcia 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.
