* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 22, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40992

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE ALBERTO GARCIA-AGUILAR,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-263-ALL

--------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges. 

PER CURIAM:*

Jorge Alberto Garcia-Aguilar pleaded guilty to being an

alien unlawfully found in the United States after deportation,

having previously been convicted of an aggravated felony, and he

was sentenced to 46 months of imprisonment and three years of

supervised release. He appeals his conviction and sentence.

Garcia-Aguilar argues for the first time on appeal that the

felony and aggravated felony provisions of 8 U.S.C. § 1326(b) are 
No. 04-40992

-2-

unconstitutional and that the validity of Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), has been called into

question in light of later cases decided by the Supreme Court. 

He concedes that this issue is foreclosed, and he raises it

solely to preserve it for further review by the Supreme Court.

Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000) did not

overrule Almendarez-Torres. As Garcia-Aguilar concedes, this

argument is foreclosed unless and until the Supreme Court itself

decides to overrule Almendarez-Torres. See Apprendi, 530 U.S.

at 489-90; United States v. Mancia-Perez, 331 F.3d 464, 470

(5th Cir.), cert. denied, 540 U.S. 935 (2003).

Garcia-Aguilar also argues that the district court erred in

sentencing him under a mandatory application of the guidelines

prohibited by United States v. Booker, 125 S. Ct. 738, 756-57,

769 (2005). Garcia-Aguilar did not raise this issue in the

district court, so we review it for plain error. See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005). 

Although there was an error, Garcia-Aguilar’s arguments and

review of the record do not demonstrate “that the district judge

would have imposed a different sentence” under advisory

guidelines. Id. at 733. Garcia-Aguilar has not shown that the

error affected his substantial rights as required under the plain

error standard. See Valenzuela-Quevedo 407 F.3d at 732-33;

United States v. Mares, 402 F.3d 511, 520-22 (5th Cir. 2005),

petition for cert. filed (Mar. 31, 2005)(No. 04-9517).
No. 04-40992

-3-

Garcia-Aguilar further argues that even if he has failed to

show prejudice, the court should reverse because the error was

structural and should be deemed presumptively prejudicial. He

acknowledges that the court did not adopt this approach in Mares,

but he believes that Mares was wrongly decided and he raises the

issue to preserve it for further review. The issue is indeed

foreclosed. See United States v. Malveaux, __F.3d__, No. 03-

41618, 2005 WL 1320362 at *1 n.9 (5th Cir. Apr. 11, 2005).

AFFIRMED.