                                                         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. 05-50126
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

SOTERO ALVARADO-JIMENEZ, also known as
Alvarado Sotero-Jimenez,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                       USDC No. 3:04-CR-1528-ALL
                          --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Sotero Alvarado-Jimenez (“Alvarado”) appeals the sentence

imposed following his conviction for illegally reentering the

United States following a prior deportation, in violation of

8 U.S.C. § 1326.     Finding no error, we affirm.

     Alvarado first argues that, in light of United States v.

Booker, 125 S. Ct. 738 (2005), the district court erred in

imposing a sentence utilizing the Sentencing Guidelines as

mandatory.     We review for plain error.   See United States v.

     *
       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this opinion should not be published and is not precedent except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. 05-50126
                               -2-

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

filed (No. 04-9517) (U.S. Mar. 31, 2005).   Application of the

Guidelines as mandatory, even absent a Sixth Amendment violation

as is the case here, is plain or obvious error after Booker.      See

United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.

2005), petition for cert. filed (July 25, 2005) (No. 05-5556).

However, Alvarado cannot show that the error affected his

substantial rights because the record does not indicate that the

district court would have imposed a lower sentence under an

advisory, rather than a mandatory, Guidelines scheme.    See id.;

Mares, 402 F.3d at 522.

     Alvarado’s second argument, that 8 U.S.C. §§ 1326(b)(1) and

(b)(2) are unconstitutional, is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235, 239-47 (1998).     See United

States v. Martinez-Mata, 393 F.3d 625, 629 n.3 (5th Cir. 2004),

cert. denied, 125 S. Ct. 1877 (2005).    Alvarado concedes this

point, but raises it to preserve the matter for further review.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.
