UNITED STATES of America, Plaintiff-Appellee, v. Carlos GANDARILLA-HERNANDEZ, also known as Jose Jorge Gutierrez-Hernandez, Defendant-Appellant, 157 F. App'x 772

PER CURIAM: Carlos Gandarilla-Hernandez (“Gandarilla”) appeals the 33-month sentence he received after pleading guilty to illegally reentering the U.S. after having been previously deported following an aggravated felony conviction, in violation of 8 U.S.C. § 1326. He argues, for the first time on appeal, that the district court erred in imposing his sentence under a mandatory sentencing guidelines scheme, citing United States v. Booker, 543 U.S. 220,125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005). The argument is reviewed for plain error. United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 267, 163 L.Ed.2d 240 (2005). Although Gandarilla’s sentence, imposed under the formerly mandatory version of the sentencing guidelines, constitutes error that is plain, the claim fails because, as Gandarilla concedes, there was no effect on his substantial rights; there is no indication from the record that the district court would have imposed a different sentence under an advisory guidelines scheme. See id.; United States v. Mares, 402 F.3d 511, 517-18, 521 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005).

Gandarilla’s argument that the error is structural and presumptively prejudicial is without merit. See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 464, 163 L.Ed.2d 352 (2005); United States v. Malveaux, 411 F.3d 558, 561 & n. 9 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 194, 163 L.Ed.2d 209 (2005). Gandarilla’s constitutional challenge to 8 U.S.C. § 1326(

b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Gandarilla contends that Ahnendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005).

Gandarilla properly concedes that his argument is foreclosed in light of AlmendarezTorres and circuit precedent, but he raises it here to preserve it for further review. The district court’s judgment is 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.