#### UNITED STATES of America, Plaintiff-Appellee, v. Luis CASTILLO-RAMIREZ, Defendant-Appellant.

No. 05-40013.

Conference Calendar.

United States Court of Appeals, Fifth Circuit.

Decided Aug. 17, 2005.

James Lee Turner, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Houston, TX, for Defendant-Appellant.

*380Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM: *

Luis Castillo-Ramirez appeals the sentence imposed following his guilty-plea conviction for being unlawfully present in the United States after deportation following a conviction for an aggravated felony. For the first time on appeal, Castillo argues that the district court committed reversible error under *United States v. Booker,*— U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by sentencing him pursuant to a mandatory application of the sentencing guidelines. He asserts that this issue should be reviewed de novo because raising an objection in the district court would have been futile and because the remedial opinion in *Booker*was unforeseeable. We review for plain error. *See United States v. Valenzuela-Quevedo,*407 F.3d 728, 732 (5th Cir.2005), *petition for cert. filed*(July 25, 2005) (No. 05-5556). As Castillo acknowledges, this argument is foreclosed.

Castillo contends that the district court plainly erred by sentencing him pursuant to a mandatory application of the guidelines because the error was structural or because prejudice should otherwise be presumed. He concedes that he cannot show plain error under the standard set forth in *United States v. Mares,*402 F.3d 511, 520-21 (5th Cir.2005), *petition for cert. filed*(Mar. 31, 2005) (No. 04-9517), but asserts that *Mares*was wrongly decided. The error was not structural and prejudice is not otherwise presumed. *See United States v. Martinez-Lugo,*411 F.3d 597, 601 (5th Cir.2005); *United States v. Malveaux,*411 F.3d 558, 561 n. 9 (5th Cir.2005)(citing *Mares,*402 F.3d at 520-22), *petition for cert. filed*(July 11, 2005) (No. 05-5297). As Castillo acknowledges, this argument is foreclosed.

Also for the first time on appeal, Castillo argues that the sentence enhancing provisions contained in 8 U.S.C. §§ 1326(b)(1) and (b)(2) are unconstitutional. This argument is foreclosed by the Supreme Court’s decision in *Almendarez-Torres v. United States,*523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not overrule *Almendarez-Torres. See Apprendi,*530 U.S. at 489-90, 120 S.Ct. 2348; *United States v. Dabeit,*231 F.3d 979, 984 (5th Cir.2000). The Supreme Court’s decisions in *Blakely v. Washington,*542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and *Booker*did not overrule *Almendarez-Torres. See Booker,*125 S.Ct. at 756; *Blakely,*124 S.Ct. at 2536-43. This court must follow the precedent set in *AlmendarezTorres*“unless and until the Supreme Court itself determines to overrule it.” *Dabeit,*231 F.3d at 984 (internal quotation marks and citation omitted). As Castillo concedes, this argument is foreclosed.

affirmed:

*

 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.