                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 9, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40570
                          c/w No. 04-40572
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MANUEL REYES-RODRIGUEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:04-CR-301-ALL
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     In this consolidated appeal, Manuel Reyes-Rodriguez appeals

only from his guilty-plea conviction for illegal reentry

following deportation (No. 04-40572); Reyes-Rodriguez voluntarily

abandons any challenge with respect to the revocation of his

supervised release relating to his prior illegal reentry

conviction (No. 04-40570).

     For the first time on appeal, Reyes-Rodriguez contends that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

     *
       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this opinion should not be published and is not precedent except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. 04-40570
                           c/w 04-40572
                               - 2 -

§ 1326(b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).   Reyes-Rodriguez acknowledges that

this argument is foreclosed, but he seeks to preserve the issue

for possible Supreme Court review.   See Almendarez-Torres v.

United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000).

     He also argues that, in light of United States v. Booker,

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

sentencing him under a mandatory guidelines system.   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. 2005).   Reyes-Rodriguez’s contention that this

error is structural and gives rise to a presumption of prejudice

is unavailing.   See United States v. Malveaux, ___ F.3d ___

No. 03-41618, 2005 WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).

Reyes-Rodriguez must show that the error affected his substantial

rights, and he has not done so.   See Valenzuela-Quevedo, 407 F.3d

at 733-34.   The judgment of the district court is therefore

AFFIRMED.
