United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 17, 2005

Charles R. Fulbruge III Clerk No. 04-41115 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODOLFO ESQUIVEL-JUAREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-317-ALL --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Rodolfo Esquivel-Juarez (Esquivel) appeals the 70-month

sentence imposed after he pleaded guilty to one count of illegal

reentry into the United States. See

.

Esquivel contends that

(b) is

unconstitutional and that this court should vacate his sentence

and remand his case for resentencing to no more than two years in

prison under

(a). As he concedes, this contention

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41115 -2-

is foreclosed by Almendarez-Torres v. United States,

(1998).

Esquivel also contends that he is entitled to resentencing

because the district court sentenced him under a mandatory

application of the federal sentencing guidelines contrary to the

rule of United States v. Booker,

(2005). We review for plain error. See United States v.

Valenzuela-Quevedo,

(5th Cir. 2005), petition

for cert. filed (July 25, 2005) (No. 05-5556). Although there

was an error, Esquivel has failed to demonstrate a sufficient

probability “that the district judge would have imposed a

different sentence” under advisory guidelines. See

.

Esquivel thus fails to show that the error affected his

substantial rights as he must do to meet the plain-error

standard. See id.; United States v. Mares,

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)

(No. 04-9517).

The judgment of the district court is AFFIRMED.