                                                       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. 04-40691
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

PEDRO RAMOS-LUCIO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-103-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Pedro Ramos-Lucio appeals his sentence imposed following his

guilty plea to illegal reentry.   He was sentenced to 18 months of

imprisonment and one year of supervised release.   He argues that,

in light of United States v. Booker, 125 S. Ct. 738 (2005), his

sentence is invalid because the district court applied the

Sentencing Guidelines as if they were mandatory.   We review for

plain error.   United States v. Mares, 402 F.3d 511, 513, 520-22

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.


     *
       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this opinion should not be published and is not precedent except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. 04-40691
                                -2-

04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728, 732

(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.

05-5556).

     Ramos-Lucio is unable to establish plain error with regard

to his Booker claim because he cannot establish that being

sentenced under a mandatory Guidelines scheme affected his

substantial rights.   The record does not indicate that the

district court “would have reached a significantly different

result” under a sentencing scheme in which the Guidelines were

advisory only.   See Mares, 402 F.3d at 520-22;

Valenzuela-Quevedo, 407 F.3d at 733-34.

     Ramos-Lucio also asserts that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(a) and (b) are

unconstitutional.   He acknowledges that his argument is

foreclosed, but he seeks to preserve the issue for possible

Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).   This issue is foreclosed.   See Almendarez-Torres v.

United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,

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

     Accordingly, the judgment of the district court is AFFIRMED.
