                                                       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. 04-50749
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OLIVO MEJIA-SOLANO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 2:04-CR-74-1-AML
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Olivo Mejia-Solano (Mejia) appeals his sentence following

his guilty-plea conviction of illegal reentry, in violation of

8 U.S.C. § 1326(a) and (b)(2).   The district court sentenced him

to 41 months of imprisonment, three years of supervised release,

and a $100 special assessment.

     Mejia argues that 8 U.S.C. § 1326(b) is unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it

does not require the fact of a prior felony or aggravated-felony


     *
       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this opinion should not be published and is not precedent except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. 04-50749
                                 -2-

conviction to be charged in the indictment and proved beyond a

reasonable doubt.    As Mejia concedes, this argument is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and

Almendarez-Torres was not overruled by Apprendi.      See United

States v. Sarmiento-Funes, 374 F.3d 336, 346 (5th Cir. 2004).

     For the first time on appeal, Mejia argues that, under

United States v. Booker, 125 S. Ct. 738 (5th Cir. 2005), this

court must vacate his sentence and remand for resentencing

because the mandatory guideline regime was in place at the time

of his sentencing.   An unpreserved challenge to the computation

of a defendant’s sentence under the formerly mandatory sentencing

guidelines is reviewed for plain error.      United States v. Mares,

402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed

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

     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.       See

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

2005).   Mejia also bears the burden of demonstrating “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.     Mejia has failed to make

such a showing.   Accordingly, the judgment of the district court

is AFFIRMED.
