                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       March 8, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-41626
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                        MAURICIO GONSALEZ-VERA,

                                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:04-CR-569-ALL
                        --------------------

Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

     Mauricio Gonsalez-Vera appeals his conviction and sentence for

illegal reentry.      He argues for the first time on appeal that

(1) he was illegally sentenced under the mandatory Sentencing

Guidelines regime held unconstitutional in United States v. Booker,

125 S. Ct. 738 (2005), and (2) pursuant to Apprendi v. New Jersey,

530 U.S. 466 (2000), that 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional.

     Gonsalez’s     appeal    waiver   is   unenforceable     because      the



     *
            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opinion should not be published and is not precedent except under the limited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.
magistrate judge advised him at his rearraignment hearing that he

could appeal an illegal sentence.          See, e.g., United States v.

Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999).           We do not decide

the applicability of the sentencing waiver because the appellate

issues lack arguable merit and are foreclosed.

     Gonsalez’s Booker claim fails because the alleged Fanfan error

is neither structural nor presumptively prejudicial, and he cannot

show that it affected his substantial rights. See United States v.

Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, 126 S.

Ct. 464 (2005); United States v. Valenzuela-Quevedo, 407 F.3d 728,

732-33 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005); United

States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied, 126 S.

Ct. 43 (2005).    The sentencing and revocation hearing transcripts

are silent regarding whether the district would have reached a

different conclusion had the Guidelines been advisory, and the fact

that the district court imposed the minimum sentence under the

Guidelines is, standing alone, no indication that the court would

have reached a different conclusion under an advisory scheme.           See

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

denied, 126 S. Ct 264 (2005).    Gonsalez therefore cannot carry his

burden of showing that the result likely would have been different

had he been sentenced under the advisory scheme, and he cannot show

plain error.     See Mares, 402 F.3d at 522.

     Gonsalez’s     constitutional       challenge   is    foreclosed    by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

                                     2
Although Gonsalez contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi, we have repeatedly rejected

such arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).   Gonsalez 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.

                                                         AFFIRMED.




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