* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED April 11, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20715 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus JOSE LUIS RODRIGUEZ-ESCOBAR, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-92-1

-------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM: * Jose Luis Rodriguez-Escobar pleaded guilty to a one-count indictment charging him with being an alien found in the United States after deportation following an aggravated felony conviction. The district court sentenced Rodriguez-Escobar to 70 months in prison and a three-year term of supervised release. Rodriguez-Escobar challenges the 16-level sentencing enhancement he received under U.S.S.G. § 2L1.2(b)(1)(A)(ii), arguing that the district court erred by finding that his priorNo. 04-20715 -2- Texas conviction for burglary of a habitation constitutes a “crime of violence.” The district court correctly found that Rodriguez-Escobar’s prior conviction for burglary of a habitation was a conviction for a crime of violence. See United States v. Garcia-Mendez , 420 F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006); United States v. Hornsby , 88 F.3d 336, 339 (5th Cir. 1996). Rodriguez-Escobar argues for the first time on appeal that his sentence was imposed illegally in light of United States v. Booker , 543 U.S. 220 (2005). This court’s review is for plain

error. See 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, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). After Booker , “[i]t is clear that application of the Guidelines in their mandatory form constitutes error that is plain.” Valenzuela-Quevedo , 407 F.3d at 733. To satisfy the plain error test in light of Booker , Rodriguez-Escobar must demonstrate that his substantial rights were affected by the

error. See United States v. Infante , 404 F.3d 376, 395 (5th Cir. 2005). There is nothing in the record indicating that the district court would have imposed a different sentence under an advisory sentencing guidelines scheme. See United States v. Bringier , 405 F.3d 310, 317 n.4 (5th Cir.), cert. denied , 126 S. Ct. 264 (2005). Rodriguez-Escobar argues that application ofNo. 04-20715 -3- the plain error standard is contrary to the plain error standard enunciated in United States v. Dominguez Benitez , 542 U.S. 74 (2004). Rodriguez-Escobar’s challenge to the showing required under Mares and Bringier is unavailing, as one panel may not overrule the decision of a prior panel absent en banc reconsideration or a superseding contrary decision of the Supreme Court. See United States v. Eastland , 989 F.2d 760, 768 n.16 (5th Cir. 1993). Rodriguez-Escobar’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998). Although Rodriguez-Escobar 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 arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez , 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Rodriguez-Escobar 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.