* 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 February 23, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40133 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ANGEL RUIZ-ROSAS, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-653-ALL

-------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM: * Angel Ruiz-Rosas pleaded guilty to a one-count indictment charging him with being found in the United States following deportation. The district court sentenced Ruiz-Rosas to 57 months in prison and a two-year term of supervised release. Ruiz-Rosas’s plea agreement explicitly waived his “right to have facts that the law makes essential to the punishment” charged in the indictment or proved beyond a reasonable doubt and granted his consent to be sentenced pursuant to the Guidelines. We needNo. 05-40133 -2- not decide the applicability of the waiver in this case because the issues that Ruiz-Rosas raises are either foreclosed or lack arguable merit. Ruiz-Rosas 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 , Ruiz-Rosas must demonstrate that his substantial rights were affected by the error. 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. United States v. Bringier , 405 F.3d 310, 317 n.4 (5th Cir.), cert. denied , 126 S. Ct. 264 (2005). Ruiz-Rosas argues that application of the plain error standard is contrary to the plain error standard enunciated in United States v. Dominguez Benitez , 542 U.S. 74 (2004). Ruiz-Rosas’s challenge to the showing required under Mares and Bringier is unavailing as one panel may not overrule the decision of a prior panel absentNo. 05-40133 -3- 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). Accordingly, there is no basis for concluding that the district court would have imposed a lower sentence under an advisory sentencing regime. See Mares , 402 F.3d at 522. Ruiz-Rosas’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 Ruiz-Rosas contends that AlmendarezTorres 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 Almendarez-Torres remains binding. See United States v. Garza-Lopez , 410 F.3d 268, 276 (5th Cir.), cert. denied , 126 S. Ct. 298 (2005). Ruiz-Rosas properly concedes that his argument is foreclosed in light of AlmendarezTorres and circuit precedent, but he raises it here to preserve it for further review. AFFIRMED.