                                                       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. 04-40235
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DIONICIO CUEVAS-MENDOZA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:03-CR-826-1
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Dionicio Cuevas-Mendoza pleaded guilty to having been

present in the United States following deportation in violation

of 8 U.S.C. § 1326(a) & (b).   He argues that 8 U.S.C. § 1326(b)

is unconstitutional in view of the Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000).   He acknowledges

that this argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 24 (1998), but he states that he is raising the

issue to preserve it for possible Supreme Court review.       Apprendi

did not overrule Almendarez-Torres.   See Apprendi, 530 U.S. at

     *
       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this opinion should not be published and is not precedent except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. 04-40235
                                -2-

489-90; see also United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000).   This court must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.”   Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted).

     Cuevas-Mendoza also argues that the district court plainly

erred in imposing his sentence pursuant to the then mandatory

United States Sentencing Guidelines, which were subsequently held

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

(2005).   We review for plain error.   See United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005)(No. 04-9517).

     Cuevas-Mendoza cannot show that he was prejudiced by the

error; nothing in the sentencing transcript indicates that the

district court would have imposed a lesser sentence if it had

known that the guidelines were not mandatory.   See United States

v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005).   The error

was not structural, and prejudice is not otherwise presumed.      See

United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),

petition for cert. filed (July 11, 2005) (No. 05-5297).

Therefore, Cuevas-Mendoza has not shown reversible plain error.

See Mares, 402 F.3d at 520-21.

     AFFIRMED.
