UNITED STATES of America, Plaintiff-Appellee, v. Homero CONDE-BRAVO, Defendant-Appellant, 145 F. App'x 460

PER CURIAM: Homero Conde-Bravo (Conde) appeals his conviction and sentence for illegally reentering the United States after deportation. He argues that the sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Conde acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review. Apprendi did not overrule Almendarez-Torres.

See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). For the first time on appeal, Conde argues that the district court erred in imposing his sentence under a mandatory guideline scheme, in violation of United States v. Booker, — U.S. -, 125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005). He asserts that this court should review his claim de novo and that the error is “structural,” but he concedes that under circuit precedent this court reviews the argument for plain error because he did not raise it below. See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.2005), cert. denied — U.S. -, 126 S.Ct. 267, — L.Ed.2d. - (2005). Conde concedes that he cannot show, as required by Valenzuelar-Quevedo, that the district court would likely have sentenced him differently under an advisory sentencing scheme. Similarly, there is no indication from the court’s remarks at sentencing that the court would have imposed a sentence below the appropriate guideline range. Thus, Conde has not met his burden to show that the district court’s imposition of a sentence under a mandatory guideline scheme was plain error.

See ValenzuelaQuevedo, 407 F.3d at 733; see also United States v. Bringier, 405 F.3d 310, 317 n. 4 (5th Cir.2005), cert. denied — U.S. -, 126 S.Ct. 264, — L.Ed.2d - (2005). Accordingly, Conde’s conviction and sentence are 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 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.