                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    June 22, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-41295
                           c/w No. 04-41296
                         Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

YSIDRO GOMEZ-GRACIANO,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:00-CR-34-ALL
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Ysidro Gomez-Graciano (Gomez) appeals the sentence imposed

following his guilty plea conviction for illegal reentry, in

violation of 8 U.S.C. § 1326.**   He argues, for the first time on

appeal, that the district court erred in sentencing him under a

mandatory sentencing guidelines scheme, citing United States v.

Booker, 125 S. Ct. 738, 756 (2005).    He acknowledges that the

     *
       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this opinion should not be published and is not precedent except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.
     **
       Gomez does not appeal the revocation of his supervised
release or the sentence imposed following revocation based on
this offense.
                           No. 04-41295
                         c/w No. 04-41296
                                -2-

argument is reviewed for plain error but contends that he does

not have to demonstrate any effect on his substantial rights

because the error is structural and because prejudice should be

presumed.

     Plain error is the correct standard of review.     See United

States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL 1320362 at *1

n.9 (5th Cir. Apr. 11, 2005).   The district court committed error

that is plain when it sentenced Gomez under a mandatory

sentencing guidelines regime.   See United States v. Valenzuela-

Quevedo, 407 F.3d 728, 733 (5th Cir. 2005); United States v.

Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517).     Gomez, however, fails to

meet his burden of showing that the district court’s error

affected his substantial rights.     See Valenzeuela-Quevedo, 407

F.3d at 733-34; Mares, 402 F.3d at 521.     His argument that Mares

was wrongly decided is unavailing.    See United States v. Ruff,

984 F.2d 635, 640 (5th Cir. 1993).

     As he concedes, Gomez’s argument that the sentencing

provisions in 8 U.S.C. § 1326(a) and (b) are unconstitutional is

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

(1998).   See Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000);

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

district court’s judgment is AFFIRMED.
