                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
               IN THE UNITED STATES COURT OF APPEALS              July 11, 2007
                       FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                            No. 06-41245
                          Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               versus

  JOSE ALONSO GONZALEZ-BARREIRO, also known as Jose Gonnzalez,

                                                 Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No.7:06-CR-389-1
                         --------------------

Before JONES, Chief Judge, HIGGINBOTHAM and SMITH, Circuit
Judges.

PER CURIAM:*

     Jose   Alonso   Gonzalez-Barreiro   appeals    his     guilty-plea

conviction and sentence for illegal reentry following deportation

in violation of 8 U.S.C. § 1326(a) and (b).   He argues first that

his criminal history score was miscalculated because he should have

received zero, instead of one, criminal history point(s) for his

prior state conviction for evading a peace officer and that he

should have received only four, instead of six points, for his two

state probation revocation sentences.

     *
      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this opinion should not be published and is not precedent except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.
     We    disagree    with    Gonzalez-Barreiro’s        assertion    that   he

adequately preserved his objection to the criminal history point

assessed for his state conviction for evading a peace officer. The

only mention of that conviction before the district court was in

the context of Gonzalez-Barreiro’s written request for a downward

departure    wherein     he   referenced       the   “technical[]”    error   of

assessing a point for that conviction as a basis for a downward

departure.     Moreover, when the district court asked Gonzalez-

Barreiro what objections needed a ruling from the court, Gonzalez-

Barreiro made no mention of his conviction for evading a peace

officer.    Cf. United States v. Ocana, 204 F.3d 585, 589 (5th Cir.

2000).     With respect to his criminal history, Gonzalez-Barreiro

stated only that he requested a downward departure because he

believed it was over-represented.

     Accordingly, we review all of Gonzalez-Barreiro’s challenges

to his criminal history score for plain error.                   Assuming the

assignment of the three criminal history points was error that was

plain, Gonzalez-Barreiro cannot show that such error affected his

substantial    rights.        Although       Gonzalez-Barreiro   argues   that,

because the district court sentenced him to the bottom of the

erroneously calculated guidelines range, the district court would

also have sentenced him to the bottom of the correctly calculated

guidelines range, a sentence at the bottom of the guidelines range

does not alone establish that the error affected the defendant’s



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substantial rights.   See United States v. Bringier, 405 F.3d 310,

317 & n.4 (5th Cir.), cert. denied, 126 S. Ct. 264 (2005).

     Gonzalez-Barreiro    contends     that     the     presumption     of

reasonableness this court accords sentences imposed within the

advisory guidelines   range   erroneously     constrains    the   district

court’s discretion.   This argument is now foreclosed by Rita v.

United States, No. 06-5754 (U.S. June   21, 2007), which upheld this

court’s post-Booker methodology articulated in United States v.

Mares, 402 F.3d 511, 519 (5th Cir. 2005).

     Finally, Gonzalez-Barreiro challenges the constitutionality of

8 U.S.C. § 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Gonzalez-Barreiro’s constitutional challenge is foreclosed

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

Accordingly,   Gonzalez-Barreiro’s    conviction      and   sentence   are

AFFIRMED.




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