UNITED STATES of America, Plaintiff-Appellee, v. Jose Arnulfo AYESTA, Defendant-Appellant, 133 F. App'x 982

PER CURIAM: Jose Arnulfo Ayesta appeals his guilty-plea conviction and sentence for being found in the United States following deportation in violation of 8 U.S.C. § 1326(a) & (b). He contends the district court committed reversible plain error in imposing his sentence pursuant to the mandatory United States Sentencing Guidelines held unconstitutional in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Ayesta did not raise this issue in the district court, we review only for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).

The district court erred in imposing Ayesta’s sentence under the mandatory Guidelines scheme, and the error was obvious after Booker. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.2005). Ayesta has not shown, however, that the error affected his substantial rights. Restated, he has not shown the district court would have imposed a different or lesser sentence under a Booker advisory regime. See id. at-, 125 S.Ct. 738. Therefore, he has not shown reversible plain error. Ayesta also contends the “felony” and “aggravated felony” sentencing enhancements under 8 U.S.C. § 1326(

b) are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve it for possible Supreme Court review. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Sarmiento-Funes, 374 F.3d 336, 346 (5th Cir.2004). This court must follow Almendarez-Torres, “unless and until the Supreme Court itself determines to overrule it.” United States v.

Mancia-Perez, 331 F.3d 464, 470 (5th Cir.) (internal quotation and citation omitted), cert. denied, 540 U.S. 935, 124 S.Ct. 358, 157 L.Ed.2d 245 (2003). Accordingly, Ayesta has not established error with respect to his sentence under 8 U.S.C. § 1326(b). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.