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

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-10251
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARTIN ARMIJO-AREVALO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:04-CR-310-ALL
                      --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Martin Armijo-Arevalo pleaded guilty to being found in the

United States following deportation in violation of 8 U.S.C.

§ 1326(a), (b)(1) and (b)(2).   Because Armijo-Arevalo had been

deported subsequent to an aggravated felony conviction, his

offense level was enhanced by eight points under the Sentencing

Guidelines.

     Armijo-Arevalo’s argument that the treatment of prior

convictions as sentencing factors rather than offense elements

under 18 U.S.C. § 1326(b)(1), (b)(2) is unconstitutional is

     *
       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this opinion should not be published and is not precedent except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. 05-10251
                                -2-

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

(1998).

     Armijo-Arevalo also argues that his sentence should be

vacated pursuant to United States v. Booker, 125 S. Ct. 738

(2005), because it was imposed under a mandatory Sentencing

Guidelines regime.   Armijo-Arevalo was sentenced on February 4,

2005, and Booker was decided on January 12, 2005.    The district

court specifically noted that the guidelines were advisory.

The record shows that the district court did not err by treating

the guidelines as mandatory.    Armijo-Arevalo asserts no other

error in his sentence, other than the foreclosed issue discussed

above.

     Armijo-Arevalo also makes ex-post-facto arguments concerning

his resentencing on remand.    As remand and resentencing are

unnecessary, these arguments are moot.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.
