                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS       September 29, 2005
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 04-41570
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MARIO RIOS-DOMINGUEZ,

                                      Defendant-Appellant.


                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 1:04-CR-557-ALL
                         --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Mario Rios-Dominguez appeals the 37-month sentence imposed

by the district court following his guilty-plea conviction for

being an alien found illegally in the United States after

deportation following conviction of an aggravated felony, in

violation of 8 U.S.C. § 1326.     The Government seeks to enforce

the waiver-of-appeal provision in Rios-Dominguez’s plea

agreement.     Rios-Dominguez waived, inter alia, “the right to


     *
       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this opinion should not be published and is not precedent except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. 04-41570
                                -2-

appeal the sentence imposed or the manner in which it was

determined,” except for a sentence above the statutory maximum or

an upward departure from the applicable sentencing guidelines

range.   Rios-Dominguez contends that this waiver provision is not

enforceable because, at his rearraignment, the magistrate judge

incorrectly told him that he retained the right to appeal “any

illegal sentence.”   Because the magistrate judge’s statement

regarding the parameters of the reserved right to appeal

inaccurately described the waiver provision, Rios-Dominguez’s

waiver cannot be deemed knowing and voluntary with respect to

“any illegal sentence.”   See FED. R. CRIM. P. 11(b)(1)(N); United

States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999).

     For the first time on appeal, Rios-Dominguez argues that the

“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)

are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).   This argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998).   See United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000).

     Also for the first time on appeal, Rios-Dominguez argues

that the district court erred in sentencing him under a mandatory

sentencing guidelines scheme.   See United States v. Booker, 125

S. Ct. 738, 756 (2005).   Rios-Dominguez acknowledges that this

argument is reviewed for plain error, but argues that he does not

have to show that the district court’s error affected her
                           No. 04-41570
                                -3-

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

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

district court committed error that is plain when it sentenced

Rios-Dominguez under a mandatory sentencing guidelines regime.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th

Cir. 2005), petition for cert. filed (July 25, 2005) (No. 05-

5556); United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th

Cir. 2005).   Rios-Dominguez 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; United States v.

Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517); see also United States v.

Bringier, 405 F.3d 310, 317 n.4 (5th Cir. 2005), petition for

cert. filed (July 26, 2005) (No. 05-5535).

     AFFIRMED.
