                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    July 20, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-41755
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RODOLFO ORTIZ-ROSAS,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-03-CR-629-1
                      --------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     Rodolfo Ortiz-Rosas pleaded guilty to one charge of

attempted illegal reentry into the United States, and the

district court sentenced him to 90 months in prison and a three-

year term of supervised release.    Ortiz-Rosas now appeals his

conviction and sentence.

     Ortiz-Rosas argues that the district court relied on

improper factors in determining his sentence.    Because Ortiz-

Rosas did not object to these alleged improprieties in 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this opinion should not be published and is not precedent except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.
                           No. 03-41755
                                -2-

district court, our review is for plain error only.   The sentence

chosen by the district court was proper under the Guidelines, and

the district court could “lawfully and reasonably reinstate it on

remand.”   See United States v. Ravitch, 128 F.3d 865, 869 (5th

Cir. 1997).   Accordingly, Ortiz-Rosas has not established plain

error in connection with his sentence.

     Ortiz-Rosas also argues that the district court plainly

erred by neglecting to inform him that it was not bound by the

Government’s sentencing recommendation and that he had no right

to withdraw his plea if it did not follow this recommendation.

Ortiz-Rosas has not shown a “reasonable probability” that he

would not have pleaded guilty absent the omission.    United States

v. Dominguez Benitez, __ S. Ct. __, No. 03-167, 2004 WL 1300161

at *5 (June 14, 2004); see also United States v. Thibodeaux, 811

F.2d 847, 848 (5th Cir. 1987).   There is thus no plain error in

connection with this omission.

     Ortiz-Rosas contends that the Government breached the plea

agreement by making no argument concerning the appropriate term

of imprisonment at sentencing.   This argument is, as he concedes,

foreclosed by United States v. Reeves, 255 F.3d 208, 210 (5th

Cir. 2001).   See United States v. Ruff, 984 F.2d 635, 640 (5th

Cir. 1993).   Ortiz-Rosas’s argument concerning the

constitutionality of § 1326(b) is likewise foreclosed.    See

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

abrogated on other grounds, United States v. Reyna, 358 F.3d 344,
                          No. 03-41755
                               -3-

350 (5th Cir.) (en banc), cert. denied, __ S. Ct.__, No. 03-8903,

2004 WL 316508 (May 24, 2004).

     Ortiz-Rosas has shown no reversible error in connection with

his conviction and sentence.   Accordingly, the judgment of the

district court is AFFIRMED.
