                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  May 20, 2005
                      ______________________
                                                         Charles R. Fulbruge III
                           No. 03-41601                          Clerk
                      ______________________


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

               v.

LUIS ARQUIMEDES-PORTILLO, also known as Luis Portillo,

               Defendant - Appellant.



           Appeal from the United States District Court
                for the Southern District of Texas
                            (03-CR-249)


Before SMITH, DENNIS, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

     Luis Arquimedes-Portillo (“Portillo”) was indicted for and

pleaded guilty to being unlawfully present in the United States

following deportation under 8 U.S.C. § 1326.    At sentencing, the

district court applied a 16-level “crime of violence” enhancement

for Portillo’s 1992 New York conviction for first degree rape and

sentenced him to the bottom of the applicable Guidelines range:

46 months of imprisonment and 2 years of supervised release.


     *
      Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

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     On appeal, Portillo challenges his conviction by arguing

that the “felony” and “aggravated felony” provisions contained in

8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).       Portillo concedes that this

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998).   However, he argues that Almendarez-Torres has

been cast into doubt by Apprendi and raises this issue to

preserve it for Supreme Court review.

     Sections 1326(b)(1) and (b)(2) set forth enhanced criminal

penalties for aliens who were previously removed after committing

a felony or an aggravated felony.       In Almendarez-Torres, the

Supreme Court held that § 1326(b)(2)’s enhancement provision is a

sentencing factor and not a separate criminal offense that must

be alleged in the indictment.    523 U.S. at 235.     Apprendi did not

overrule Almendarez-Torres.     See Apprendi, 530 U.S. at 489-90;

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Because we must follow Almendarez-Torres “unless and until the

Supreme Court itself determines to overrule it,” Hopwood v.

Texas, 84 F.3d 720, 722 (5th Cir. 1996), we affirm Portillo’s

conviction.

     Portillo also argues that the district court’s mandatory

application of the Sentencing Guidelines is reversible error

under United States v. Booker, --- U.S. ----, 125 S.Ct. 738

(2005).   Because Portillo did not raise this objection to his

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sentence in the district court, it is subject to plain error

review.    United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.

2005).

     An appellant may demonstrate plain error if he shows “(1)

error, (2) that is plain, and (3) that affects substantial

rights.”   Id. (citing United States v. Cotton, 535 U.S. 625, 631

(2002)).   If all three conditions are met, then we may exercise

our discretion to notice the error only if it also “seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.”    Id.

     “It is clear after Booker that application of the Guidelines

in their mandatory form constitutes error that is plain.”     United

States v. Valenzuela-Quevedo, --- F.3d ----, No. 03-41754, 2005

WL 941353, at *4 (5th Cir. Apr. 25, 2005).    Therefore, the first

two requirements of the plain error test are met.    The third

prong of the test, however, is not satisfied in this case.    To

demonstrate that his substantial rights have been affected,

Portillo must show that the district court’s error affected the

outcome of the proceedings.    United States v. Olano, 507 U.S.

725, 734-35 (1993).    To meet that burden, Portillo must show

“with a probability sufficient to undermine confidence in the

outcome, that if the judge had sentenced him under an advisory

sentencing regime rather than a mandatory one, he would have

received a lesser sentence.”    United States v. Infante, 404 F.3d


                                  3
376, 395 (5th Cir. 2005).

     Portillo contends that the district court’s imposition of

the minimum available sentence, especially in light of the

vileness of his prior crime, demonstrates a probability that the

court would have imposed a lower sentence had it not been

constrained by the mandatory provisions in the Guidelines.

However, the transcript of the sentencing hearing reveals why the

judge sentenced Portillo to only 46 months: “The reasons that I

have chosen this sentence within the guidelines is because there

was a recommendation of a sentence at the low end of the

guidelines in this case.    It’s part of the plea bargain

agreement.”   Neither these remarks, nor anything else in the

record, indicate that the judge would have imposed a more lenient

sentence under an advisory regime.    Portillo’s substantial

rights, therefore, have not been affected, and he has failed to

show plain error.

     For the foregoing reasons, we AFFIRM Portillo’s conviction

and sentence.

AFFIRMED.




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