                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 22, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-11059
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

DOUGLAS ALEXANDER GUARDADO, also known as Samuel Ruiz,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 1:04-CR-11-ALL
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Douglas Alexander Guardado pleaded guilty to illegal reentry

after deportation and was sentenced to 87 months of imprisonment

and three years of supervised release.   He appeals his sentence.

Guardado argues for the first time on appeal that his

constitutional rights to grand jury indictment, proof beyond a

reasonable doubt, and jury trial were violated when he was

sentenced on the basis of facts beyond the fact of a prior

conviction.    He argues that under Blakely v. Washington,


     *
       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this opinion should not be published and is not precedent except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. 04-11059
                               -2-

124 S. Ct. 2531, 2537 (2004), the district court plainly erred in

increasing his criminal history score based on its finding that

he was under a sentence of parole and under a sentence of

probation at the time of the commission of the instant offense.

He concedes that because he did not object on Blakely grounds in

the district court, his claim must be reviewed for plain error.

He contends that the error was plain and that his substantial

rights were affected.

     Guardado’s claim that the district court plainly erred by

increasing his sentence based on facts not determined by a jury

and which he did not admit is unavailing because he failed to

show that “the sentencing judge--sentencing under an advisory

scheme rather than a mandatory one--would have reached a

significantly different result.”   See United States v. Mares,

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

(Mar. 31, 2005) (No. 04-9517).

     Guardado concedes that the issue whether his sentence under

8 U.S.C. § 1326(b)(2) was rendered illegal by Apprendi v.

New Jersey, 530 U.S. 466 (2000) and subsequent Supreme Court

precedent is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998), and he raises it solely to preserve it

for further review by the Supreme Court.   Apprendi did not

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

As Guardado concedes, this argument is foreclosed unless and
                           No. 04-11059
                                -3-

until the Supreme Court itself decides to overrule Almendarez-

Torres.   See Apprendi, 530 U.S. at 489-90; United States v.

Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert. denied,

540 U.S. 935 (2003).

     AFFIRMED.
