                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 17, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40765
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALBERTO JAMES GAMES-FORBES, also known as
Alberto A. James-Forbs,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-193-1
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Alberto James Games-Forbes appeals the sentence imposed

following his guilty plea to illegal reentry into the United

States following deportation.   Games was sentenced to a term of

imprisonment of 57 months to be followed by a three-year term of

supervised release.

     Games argues for the first time on appeal that Almendarez-

Torres v. United States, 523 U.S. 224 (1998), has been undercut

by subsequent Supreme Court decisions, including Apprendi v. New

     *
       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this opinion should not be published and is not precedent except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. 04-40765
                                -2-

Jersey, 530 U.S. 466 (2000), and that if Almendarez-Torres is

overruled, the felony and aggravated felony provisions of

8 U.S.C. § 1326(b)(1) and (2) would be rendered unconstitutional.

He argues that his conviction would then be reduced to the lesser

offense under 8 U.S.C. § 1326(a) and that he could not be

resentenced to more than two years of imprisonment.      Games

recognizes that his argument is foreclosed but wishes to preserve

it for further review.

     Almendarez-Torres held that the enhanced penalties contained

in 8 U.S.C. § 1326(b) were sentencing factors and not elements of

the offense.   523 U.S. at 235.   Apprendi did not overrule

Almendarez-Torres.   See Apprendi, 530 U.S. at 489-90; United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).     This court

must follow the precedent set in Almendarez-Torres unless the

Supreme Court overrules it.   Dabeit, 231 F.3d at 984.    Games’s

challenge to the constitutionality of 8 U.S.C. § 1326(b) is

without merit.

     Games argues that his sentence was imposed pursuant to an

unconstitutional mandatory guidelines system, which was

reversible plain error in light of United States v. Booker,

125 S. Ct. 738 (2005).   He argues that it is likely that the

district court would have imposed a lesser sentence because it

imposed a sentence at the bottom of the sentencing guidelines

range and because of his youth when he committed a prior felony

offense.   He argues in the alternative that the error was
                           No. 04-40765
                                -3-

structural and that prejudice should be presumed.   He contends

that even if the error was not structural, it presumably affected

his substantial rights and the fairness and integrity of the

judicial proceeding.

     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), petition for cert. filed (July 25,

2005) (No. 05-5556).   Games’s contention that this error is

structural and gives rise to a presumption of prejudice is

unavailing.   See United States v. Malveaux, 411 F.3d 558, 560-61

n.9 (5th Cir. 2005), petition for cert. filed (July 11, 2005)

(No. 05-5297).   Games must show that the error affected his

substantial rights, and he has not done so.   See Valenzuela-

Quevedo, 407 F.3d at 733-34.

     AFFIRMED.
