                                                        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. 04-41366
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ARTURO PALENCIA-CONTRERAS,
also known as Joaquin Gonzalez-Hernandez,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-322-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Arturo Palencia-Contreras (“Palencia”) appeals the 37-month

sentence he received following his guilty-plea conviction for

illegal reentry, in violation of 8 U.S.C. § 1326.   He first

argues that his prior conviction for simple possession of cocaine

under Texas law should not be considered an aggravated felony for

enhancement purposes under U.S.S.G. § 2L1.2.   The argument is

foreclosed.    See United States v. Caicedo-Cuero, 312 F.3d 697,



     *
       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this opinion should not be published and is not precedent except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. 04-41366
                                  -2-

706-11 (5th Cir. 2002); United States v. Hinojosa-Lopez, 130 F.3d

691, 694 (5th Cir. 1997).

     Palencia next argues, for the first time on appeal, that his

sentence is unconstitutional because Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998), has effectively been overruled

by Apprendi v. New Jersey, 530 U.S. 466 (2000).   However,

Apprendi did not overrule Almendarez-Torres.   See Apprendi, 530

U.S. at 489-90; see also United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000).   To the extent that Palencia argues that

Almendarez-Torres has been overruled by United States v. Booker,

125 S. Ct. 738 (2005), he is incorrect; nothing in Booker

suggests that the rule of Alemendarez-Torres has been disturbed.

Booker, 125 S. Ct. at 756.

     Palencia additionally argues, also for the first time on

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

mandatory sentencing guidelines scheme, citing Booker.     He

acknowledges that the 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, 411 F.3d 558, 561 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

Palencia under a mandatory sentencing guidelines regime.        See
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                                -3-

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

petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

Palencia, however, fails to meet his burden of showing that the

district court’s error affected his substantial rights because he

points to nothing in the record indicating that the district

court would have imposed a lesser sentence under an advisory

scheme.   See Valenzeuela-Quevedo, 407 F.3d at 733-34; Mares, 402

F.3d at 521.

     The district court’s judgment is AFFIRMED.
