                                                       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. 04-41118
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MANUEL EGUIA-HERNANDEZ,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-599-1
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Manuel Eguia-Hernandez appeals his conviction and sentence

for illegal reentry of an alien after having been deported.          He

argues that the district court erred by imposing an eight-level

increase pursuant to U.S.S.G. § 2L1.2(b)(1)(C) for Eguia’s having

a prior aggravated felony conviction; that the provisions of

8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000); and that his sentence is

unconstitutional under United States v. Booker, 125 S. Ct. 738


     *
       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this opinion should not be published and is not precedent except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. 04-41118
                                -2-

(2005), because it was imposed pursuant to a mandatory guidelines

scheme.

     Eguia contends that his state conviction for possession of a

controlled substance is not a qualifying aggravated felony

because it is not a felony under federal law.   This court has

specifically held that a prior conviction for a state drug

offense will qualify as an aggravated felony under U.S.S.G.

§ 2L1.2(b)(1)(C) if it is punishable under the Controlled

Substances Act and punishable by more than one year of

imprisonment under the applicable state law.    United States v.

Sanchez-Villalobos, 412 F.3d 572, 576 (5th Cir. 2005).   Eguia

does not dispute that his state conviction was punishable under

the Controlled Substances Act.   Additionally, Eguia was sentenced

to a ten-year term of imprisonment in connection with that

conviction.   Thus, the argument is without merit.

     Eguia’s argument that the provisions of 8 U.S.C. § 1326(b)

are unconstitutional is, as he concedes, foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).

     Eguia also challenges his sentence as unconstitutional under

Booker.   He argues that the error is structural in nature and

that prejudice should be presumed.   This court rejected that

argument in United States v. Martinez-Lugo, 411 F.3d 597, 601

(5th Cir. 2005), and determined that an unpreserved error

challenging the mandatory nature of the guidelines is subject to

a plain-error analysis.   United States v. Mares, 402 F.3d 511,
                           No. 04-41118
                                -3-

520 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)

(No. 04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728,

732 (5th Cir. 2005), petition for cert. filed (July 25, 2005)

(No. 05-5556).

     The district court committed error that is plain by

sentencing Eguia under a mandatory guidelines scheme.

Valenzuela-Quevedo, 407 F.3d at 733.   However, Eguia fails to

carry his burden of showing that this error affected his

substantial rights.   Id. at 733-34.   Eguia concedes that the

district court did not indicate that it would have imposed a

lesser sentence in the absence of mandatory guidelines.

Accordingly, the judgment of the district court is AFFIRMED.
