                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41500
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROGACIANO JAIMES BETANCOURT-CRUZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-538-ALL
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Rogaciano Jaimes Betancourt-Cruz appeals his sentence

imposed following his guilty conviction plea for illegal reentry

into United States following deportation.     Betancourt-Cruz was

sentenced to a term of imprisonment of 57 months, to be followed

by a three-year term of supervised release.     We need not decide

the applicability of the waivers in this case because the issues

raised by Betancourt-Cruz are without arguable merit.




     *
       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this opinion should not be published and is not precedent except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. 04-41500
                                -2-

     Betancourt-Cruz argues that his sentence under the mandatory

guidelines system was plain error that affected his substantial

rights because the district court would have imposed a different

sentence under an advisory guidelines system.    He relies on the

fact that the district court imposed a sentence at the bottom of

the sentencing guidelines range.   He also contends that the

sentence affected the fairness and integrity of the judicial

proceeding.

     In the remedial portion of United States v. Booker, 125

S. Ct. 738, 764-65 (2005), the Supreme Court excised 18 U.S.C.

§ 3553(b)(1) of the Sentencing Reform Act, rendering the Federal

Sentencing Guidelines effectively advisory.     After Booker, it is

clear that application of the Federal Sentencing Guidelines in

their mandatory form constitutes error that is plain.    See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.),

cert. denied, 126 S. Ct. 267 (2005).   Betancourt-Cruz must show

that the error affected his substantial rights, and he has not

done so.   See Valenzuela-Quevedo, 407 F.3d at 733-34.   His

sentence at the bottom of the sentencing guidelines range is not

sufficient to make the required showing.   See United States v.

Bringier, 405 F.3d 310, 318 n.4 (5th Cir.), cert. denied, 126

S. Ct. 264 (2005).

     Betancourt-Cruz argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) & (2) are

unconstitutional, relying on the Supreme Court’s suggestion in
                          No. 04-41500
                               -3-

Apprendi v. New Jersey, 530 U.S. 466 (2000) that Almendarez-

Torres v. United States, 523 U.S. 224 (1998) was wrongly decided.

     Betancourt-Cruz’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States.    Although Betancourt-Cruz

contends that Almendarez-Torres was incorrectly decided and that

a majority of the Supreme Court would overrule Almendarez-Torres

in light of Apprendi, we have repeatedly rejected such arguments

on the basis that Almendarez-Torres remains binding.    See United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005).    Betancourt-Cruz

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

     AFFIRMED.
