United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41431 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS CASTRO-GUZMAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-530-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jesus Castro-Guzman appeals his guilty-plea conviction for

being found in the United States after previously having been

deported. Castro-Guzman argues that there was error under United

States v. Booker,

,

(2005), because he

was sentenced under the mandatory Sentencing Guidelines. Castro-

Guzman’s sentence was enhanced based only on his prior

convictions, and, thus, Castro-Guzman’s sentence was not affected

by a Sixth Amendment violation. See Booker,

,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41431 -2-

769. Nevertheless, the district court erred by imposing a

sentence pursuant to a mandatory application of the Sentencing

Guidelines. Id. at 768; see also United States v.

Valenzuela-Quevedo,

(5th Cir.), cert. denied,

(2005). However, Castro-Guzman cannot establish

that this error affected his substantial rights because he cannot

show that the outcome would have been different absent the error.

See United States v. Mares,

(5th Cir.), cert.

denied,

(2005). The record does not establish that

the sentencing court would have imposed a different sentence had

it been proceeding under an advisory guideline scheme.

Castro-Guzman also challenges the constitutionality of

(b)’s penalty provisions in light of Apprendi v.

New Jersey,

(2000). Castro-Guzman’s challenge is

foreclosed by Almendarez-Torres v. United States,

(1998). Although Castro-Guzman contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi, we have repeatedly rejected such arguments on the basis

that Almendarez-Torres remains binding. See United States v.

Garza-Lopez,

(5th Cir.), cert. denied,

(2005). Castro-Guzman 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.

The judgment of the district court is AFFIRMED.