                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     January 13, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-41620
                            Summary Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ROBERTO MONOTO, also known as Luis Vasquez-Perez,

                                         Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                         (1:04-CR-577-ALL)
                       --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Roberto Monoto appeals from his guilty-

plea conviction and sentence for illegally re-entering the United

States after a previous deportation.           Monoto was sentenced to 63

months in prison and three years of supervised release.             Monoto’s

claims are not barred by his plea agreement.

     For   the   first   time   on   appeal,   Monoto   contends   that    his

sentence should be vacated because it was imposed pursuant to an

unconstitutional mandatory guidelines system, contrary to            Booker.

This is an alleged Fanfan-type error.              See United States v.

     *
       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this opinion should not be published and is not precedent except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.
Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S.

Ct. 464 (2005).     Our review is for plain error.   See id.; United

States v. Mares, 402 F.3d 511, 520-21 (5th Cir.), cert. denied, 126

S. Ct. 43 (2005).

    Although the application of a mandatory guidelines regime was

error that was “plain,” Monoto cannot carry his burden of showing

that the Fanfan error affected her sentence.     See Martinez-Lugo,

411 F.3d at 600.     There is nothing in the record to suggest that

the district court felt constrained by the mandatory guidelines in

imposing Monoto’s sentence.     See Mares, 402 F.3d at 522; see also

United States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.)

(minimum guideline sentence, without more, insufficient to carry

third prong of plain-error test), cert. denied, 126 S. Ct. 264

(2005).   We have rejected contentions like the one Monoto advances

that the error was a “structural” one that affected the entire

“framework” of the proceeding against him, and that plain-error

prejudice should be presumed.    See United States v. Malveaux, 411

F.3d 558, 561 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194 (2005).

     Monoto’s challenge to the constitutionality of 8 U.S.C.       §

1326(a) and (b) is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998).     Although Monoto contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly

rejected such contentions on the basis that Almendarez-Torres

                                  2
remains binding.   See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).       Monoto

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

     Monoto’s conviction and sentence are AFFIRMED.




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