                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 August 12, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41562
                          Summary Calendar



                      UNITED STATES OF AMERICA,

                         Plaintiff-Appellee,

                               versus

                   EDUARDO JAVIER LINAN-GONZALEZ,

                        Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-84-ALL
                      --------------------

Before BENAVIDES DENNIS and OWEN, Circuit Judges

PER CURIAM:*

     Eduardo Javier Linan-Gonzalez appeals the sentence following

his guilty-plea conviction for illegal reentry after deportation in

violation of 8 U.S.C. § 1326(a) and (b).     Linan-Gonzalez contends

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

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

530 U.S. 466 (2000).       He 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.


     *
       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this opinion should not be published and is not precedent except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. 04-41562
                                       -2-

224, 247 (1998); United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000).

      Linan-Gonzalez also argues that his sentence was unreasonable

because the district court failed to consider whether, under 18

U.S.C. § 3553(a), his unique mental condition in the form of severe

depression warranted a sentence below the applicable guidelines

range.   While the district court found that he did not suffer from

“diminished capacity,” the defendant argues that consideration of

a   downward   departure    was    warranted     based   on   his   mental   and

emotional condition.       Under the Sentencing Guidelines, mental and

emotional conditions are not ordinarily relevant to sentencing.

U.S.S.G. § 5H1.3.    The defendant argues that, after United States

v. Booker, 125 S. Ct. 738 (2005), this provision as to mental

conditions is not mandatory and his depression warranted a lesser

sentence under 18 U.S.C. § 3553(a).

      The defendant’s argument, now based upon Booker, is raised for

the first time on appeal.          Accordingly, our review is for plain

error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-

33 (5th Cir. 2005).

      Although Linan-Gonzalez does not explicitly argue that his

sentence was erroneous because it was imposed under a mandatory

guidelines system, it is the unstated premise for his argument

that, based upon Booker, the district court should have taken his

mental condition into consideration and given him a sentence below

the applicable guidelines range.           After Booker, the mandatory
                               No. 04-41562
                                    -3-

application    of   the   guidelines    is   an   error   that    is   plain.

Valenzuela-Quevedo, 407 F.3d at 733.

     Linan-Gonzalez has not shown, however, that his substantial

rights were affected by the error.        Id. at 733-34.      He stops short

of asserting that, if the district court has considered his mental

condition under 18 U.S.C. § 3553(a), it would have imposed a lesser

sentence.    Moreover, even under an advisory guidelines scheme, the

district court could have considered the Sentencing Commission’s

policy statement that mental and emotional conditions are not

ordinarily    relevant    in   determining      whether   a   departure   is

warranted.    See United States v. Mares, 402 F.3d 511, 518-19 (5th

Cir. 2005);    U.S.S.G.   §    5H1.3,   p.s.;   18   U.S.C.   §   3553(a)(5).

Finally, the record indicates that the district court did not

believe that Linan-Gonzalez suffered from diminished capacity,

instead concluding that his problem was no different from other

people who miss their families in the United States.               As Linan-

Gonzalez has not carried his burden of showing that he would have

received a different sentence if the district court had sentenced

him under an advisory guidelines scheme, his sentence is AFFIRMED.
