                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                          October 3, 2005

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                 No. 04-41193
                               Summary Calendar


                        UNITED STATES OF AMERICA,

                           Plaintiff-Appellee,

                                      versus

         JOSE CORTEZ-VILLANUEVA, also known as Jose Luis
                         Hernandez-Cortez,

                          Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:04-CR-336-ALL
                        --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose     Cortez-Villanueva       (“Cortez”)     appeals   his     sentence

following his guilty-plea conviction for illegal reentry after

deportation. We pretermit discussion of the validity of his appeal

waiver because, for the reasons discussed below, Cortez is not

entitled to relief.

     Cortez    argues   that    the    “felony”    and   “aggravated     felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional




     *
       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this opinion should not be published and is not precedent except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. 04-41193
                                     -2-

in light of the Supreme Court’s decision in Apprendi v. New Jersey,

530   U.S.    466   (2000).       Cortez’s     argument    concerning      the

constitutionality    of   8   U.S.C.   §   1326(b)   is,   as    he   concedes,

foreclosed.    See Almendarez-Torres v. United States, 523 U.S. 224

(1998); United States v. Izaguirre-Flores, 405 F.3d 270, 277-78

(5th Cir. 2005), petition for cert. filed (July 22, 2005) (No.

05-5469).

      Cortez also argues for the first time in a supplemental brief

that the district court erred by sentencing him under the mandatory

Guideline regime held unconstitutional in United States v. Booker,

125 S. Ct. 738 (2005).        We review this argument for plain error.

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

2005).   Our review of the record does not reveal that the district

court’s error affected the outcome of the sentencing proceedings.

See id. at 600-01.    Therefore, Cortez has failed to establish that

the error affected his substantial rights and he consequently

cannot meet the plain error standard of review.            Id.

      AFFIRMED.
