                                                       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. 05-40013
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LUIS CASTILLO-RAMIREZ,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-567-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Luis Castillo-Ramirez appeals the sentence imposed following

his guilty-plea conviction for being unlawfully present in the

United States after deportation following a conviction for an

aggravated felony.   For the first time on appeal, Castillo argues

that the district court committed reversible error under United

States v. Booker, 125 S. Ct. 738 (2005), by sentencing him

pursuant to a mandatory application of the sentencing guidelines.

He asserts that this issue should be reviewed de novo because

raising an objection in the district court would have been futile

     *
       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this opinion should not be published and is not precedent except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. 05-40013
                                -2-

and because the remedial opinion in Booker was unforeseeable.        We

review for plain error.   See United States v. Valenzuela-Quevedo,

407 F.3d 728, 732 (5th Cir. 2005), petition for cert. filed

(July 25, 2005) (No. 05-5556).    As Castillo acknowledges, this

argument is foreclosed.

     Castillo contends that the district court plainly erred by

sentencing him pursuant to a mandatory application of the

guidelines because the error was structural or because prejudice

should otherwise be presumed.    He concedes that he cannot show

plain error under the standard set forth in United States v.

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

filed (Mar. 31, 2005) (No. 04-9517), but asserts that Mares was

wrongly decided.   The error was not structural and prejudice is

not otherwise presumed.   See United States v. Martinez-Lugo,

411 F.3d 597, 601 (5th Cir. 2005); United States v. Malveaux,

411 F.3d 558, 561 n.9 (5th Cir. 2005)(citing Mares, 402 F.3d at

520-22), petition for cert. filed (July 11, 2005) (No. 05-5297).

As Castillo acknowledges, this argument is foreclosed.

     Also for the first time on appeal, Castillo argues that the

sentence enhancing provisions contained in 8 U.S.C. §§ 1326(b)(1)

and (b)(2) are unconstitutional.    This argument is foreclosed by

the Supreme Court’s decision in Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998).    Apprendi v. New Jersey,

530 U.S. 466 (2000), did not overrule Almendarez-Torres.       See

Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d
                            No. 05-40013
                                 -3-

979, 984 (5th Cir. 2000).   The Supreme Court’s decisions in

Blakely v. Washington, 124 S. Ct. 2531 (2004), and Booker did not

overrule Almendarez-Torres.   See Booker, 125 S. Ct. at 756;

Blakely, 124 S. Ct. at 2536-43.   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 marks and citation omitted).   As Castillo

concedes, this argument is foreclosed.

     AFFIRMED.
