                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 25, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-40700
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

CHARLES ANTHONY FANTOZZI

                     Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:01-CR-135-1
                      --------------------

Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

     Charles Anthony Fantozzi entered a guilty plea pursuant to

a written plea agreement to a charge of possession with intent

to distribute approximately 365 kilograms of marijuana.       The

district court found under U.S.S.G. § 4B1.1 that Fantozzi was a

career offender but granted a motion for a downward departure and

sentenced Fantozzi to 150 months of imprisonment and five years

of supervised release.




     *
       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this opinion should not be published and is not precedent except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. 04-40700
                                  -2-

     Fantozzi requests the substitution of appointed counsel and

an extension of time, or alternatively, for an extension of time

so that he may proceed pro se on appeal.      Fantozzi has not made

the showing required for the court to substitute appointed

counsel.   See Fifth Circuit Plan under the CJA, § 5(B).     Fantozzi

did not timely inform the court that he wished to exercise his

right to represent himself on direct appeal.      See United States

v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998); see also

Martinez v. Court of Appeal of California, 528 U.S. 152, 163

(2000) (explaining that there is no constitutional right to

proceed pro se on appeal).    Accordingly, the motion is DENIED.

     For the first time on appeal, Fantozzi challenges his

sentence based on Blakely v. Washington, 124 S. Ct. 2531 (2004).

Fantozzi contends that the existence of prior convictions is a

finding that is not meaningfully distinguishable from any other

finding that is used to increase a sentence, and he argues that

sentencing enhancements imposed for prior convictions must be

authorized by a jury verdict or a defendant’s admission.

Although Fantozzi concedes that Almendarez Torres v. United

States, 523 U.S. 224 (1997), has not been overruled, he asserts

that Almendarez-Torres was erroneously decided and that its

viability has been undermined by recent decisions.

     Because Fantozzi did not raise this issue in the district

court, our review is for plain error.       To demonstrate plain

error, Fantozzi must show an error that is obvious and that
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                                -3-

affects his substantial rights.     See United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed,

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

     As Fantozzi concedes, Almendarez-Torres has not been

overruled, and we are required to follow it “unless and until the

Supreme Court itself determines to overrule it.”    United States

v. Izaguirre, ___ F.3d ___, No. 04-40276, 2005 WL 730070 *4 (5th

Cir. Mar. 31, 2005) (internal quotations and footnote omitted);

see also Shepard v. United States, 125 S. Ct. 1254, 1262-63 & n.5

(2005).

     Fantozzi has not demonstrated plain error.     See Mares,

402 F.3d at 521-22.   In Blakely v. Washington, 124 S. Ct. 2531,

2537 (2004) (emphasis omitted), the Supreme Court held that the

Sixth Amendment prohibits state sentences greater than “the

maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the

defendant.”   Blakely was based on the rule announced in Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000), that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

Blakely, 124 S. Ct. at 2536.   In United States v. Booker, 125 S.

Ct. 738, 756 (2005), the Court reaffirmed Apprendi by holding

that “any fact (other than a prior conviction) which is necessary

to support a sentence exceeding the maximum authorized by the
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                                 -4-

facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

doubt.”   Apprendi and Booker explicitly exempted the fact of

prior convictions from those facts that increase a sentence that

must be found by a jury or admitted by the defendant.    Booker,

125 S. Ct. at 756; Apprendi, 530 U.S. at 490.    Fantozzi also has

not shown that any error affected his substantial rights.

See Mares, 402 F.3d at 521-22.    Accordingly, Fantozzi has not

demonstrated plain error.   Id.

     AFFIRMED.   MOTION DENIED.
