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

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-40176
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LUIS MORALES-CORDOVA,

                                     Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:04-CR-735-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Luis Morales-Cordova appeals his sentence under 8 U.S.C.

§ 1326(a) and (b) for illegal reentry into the United States

after having been deported following conviction for an aggravated

felony.   The plea agreement between Morales-Cordova and the

Government contains waiver language that may preclude appeal of

his sentence.   However, because Morales-Cordova cannot succeed on

the merits of his claims, it is not necessary to resolve the

waiver issue.


     *
       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this opinion should not be published and is not precedent except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. 05-40176
                                -2-

     For the first time on appeal, Morales-Cordova asserts that

the district court’s belief during sentencing that the United

States Sentencing Guidelines were mandatory, rather than

advisory, is reversible error under United States v. Booker,

125 S. Ct. 738 (2005).   He asserts that the error is structural,

or at least presumptively prejudicial.

     We review for plain error.    See United States v. Valenzuela-

Quevedo, 407 F.3d 728, 732 (5th. Cir.), cert. denied, 126 S. Ct.

267 (2005).   The error is not structural, and prejudice is not

presumed.   United States v. Martinez-Lugo, 411 F.3d 597, 600-01

(5th Cir. 2005), cert. denied, ___ S. Ct. ___ (Oct. 11, 2005)

(No. 05-6242).

     In the alternative, Morales-Cordova asserts that he is

entitled to reversal even under the plain error standard.

However, he has failed to establish that the error affected his

substantial rights.   Although the district court sentenced him at

the bottom of the applicable sentencing range, the court denied

his request for a downward departure, and there is no indication

that the judge would have issued a lesser sentence but for the

mandatory Sentencing Guidelines.   See United States v. Bringier,

405 F.3d 310, 317 n.4 (5th Cir.), cert. denied, 126 S. Ct. 264

(2005); United States v. Garcia-Rodriguez, 415 F.3d 452, 456 (5th

Cir. 2005), petition for cert. filed (U.S. Sept. 27, 2005) (No.

05-6912).   Therefore, he cannot demonstrate plain error.
                            No. 05-40176
                                 -3-

     Finally, Morales-Cordova asserts that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional.   The Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

controls this issue.   We must follow Almendarez-Torres unless the

Supreme Court overrules it.   United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000).   Accordingly, this issue is foreclosed.

     The judgment of the district court is AFFIRMED.
