United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 24, 2006

Charles R. Fulbruge III Clerk No. 04-41712 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ALFREDO CASTRO-GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:04-CR-337-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Alfredo Castro-Gonzales (Castro) was convicted of

illegal reentry following deportation. He argues on appeal that,

in light of United States v. Booker,

(2005), the

district court erred by sentencing him under mandatory Sentencing

Guidelines. He also argues that

(b) is

unconstitutional in light of Apprendi v. New Jersey,

(2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41712 -2-

We review Castro’s first argument for plain error. See

United States v. Mares,

(5th Cir.), cert.

denied,

(2005). The district court’s application

of the guidelines in their mandatory form constituted error that

is plain. See United States v. Valenzuela-Quevedo,

(5th Cir.), cert. denied,

(2005). Castro

concedes that he cannot meet the third prong of plain-error

analysis, as a review of the record gives no indication that the

judge would have sentenced him any differently had he known the

guidelines were only advisory. See Mares,

.

Castro also concedes that this court has rejected his argument

that the application of mandatory guidelines is a structural

error or is presumptively prejudicial. See United States v.

Malveaux,

, 560 n.9 (5th Cir.), cert. denied,

(2005). He nevertheless raises these arguments to

preserve them for further review.

Castro’s constitutional challenge to § 1326(b) is foreclosed

by Almendarez-Torres v. United States,

(1998).

Although Castro 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

properly concedes that his argument is foreclosed in light of No. 04-41712 -3-

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

Accordingly, the judgment of the district court is AFFIRMED.