                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         October 7, 2005

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                 No. 04-10448
                               Summary Calendar



                          UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

                    PEDRO ANTONIO LOPEZ-DELGADILLO,

                                                          Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                      USDC No. 4:02-CR-226-ALL-A
                         --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Pedro Antonio Lopez-Delgadillo appeals the sentence imposed

following his guilty-plea conviction of being found in the United

States,   without       permission,    following    his    conviction     of    an

aggravated     felony    and   subsequent      deportation.     See   8   U.S.C.

§ 1326(a), (b).         Lopez-Delgadillo did not raise his appellate

arguments in the district court.               Accordingly, this court will

review the issues for plain error only.             United States v. Olano,

507 U.S. 725, 732-35 (1993).



     *
            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opinion should not be published and is not precedent except under the limited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.
     Construed liberally, Lopez-Delgadillo first argues that the

district    court    should     have    treated      his     1996    conviction         of

possession of a controlled substance and his 1999 conviction of

delivery of a controlled substance as “related” for purposes of

calculating his criminal history points under the United States

Sentencing Guidelines.           He notes that the terms of probation

imposed against him in each of those cases were revoked at the same

hearing     and   the    revocation     sentences      were     ordered         to     run

concurrently. Lopez-Delgadillo’s argument lacks merit. See United

States v. Kates, 174 F.3d 580, 584 (5th Cir. 1999).                      Moreover, the

district court did not commit plain error in calculating Lopez-

Delgadillo’s criminal history points.             See U.S.S.G. §§ 4A1.1 and

4A1.2.

     Lopez-Degadillo        next     argues   that     the     96-month         term    of

imprisonment imposed in his case is excessive and violates the

Eighth Amendment prohibition against cruel and unusual punishment.

Measured against the Rummel v. Estelle, 445 U.S. 263 (1980),

benchmark,    however,     Lopez-Degadillo’s         sentence       is    not    grossly

disproportionate to his offense and does not violate the Eighth

Amendment.

     Finally,     Lopez-Delgadillo       argues      that    the    district         court

committed    plain      error   by   sentencing   him       under    the    mandatory

Sentencing Guidelines scheme held unconstitutional in United States

v. Booker, 125 S. Ct. 738 (2005).             Lopez-Delgadillo has satisfied

the first two prongs of the plain error analysis by showing that

                                         2
the district court committed error that was plain.             See United

States v.   Martinez-Lugo,   411   F.3d   597,   600   (5th   Cir.   2005).

However, he has not satisfied the third prong of the plain error

analysis by showing that the error affected his substantial rights.

See id. at 600-01.

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.




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