                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                         F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                                September 29, 2006
                  FOR THE FIFTH CIRCUIT
                 ______________________
                                               Charles R. Fulbruge III
                      No. 03-20806                     Clerk
                    Summary Calendar
                 ______________________

                 UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                            versus

                      MATILDA BONILLA,

                                    Defendant-Appellant.
   ___________________________________________________

      Appeal from the United States District Court
           for the Southern District of Texas,
                 Case No. H-94-CR-162-1
   ___________________________________________________

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

    In an opinion dated May 24, 2004, this court

affirmed the district court’s upward departure in

sentencing defendant Matilda Bonilla for failing to

appear for trial in connection with a 1991 drug charge.

See United States v. Bonilla, 97 F. App’x 502 (5th Cir.

    *
     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that this opinion should not be published and is not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.
                              1
2004).   While Bonilla’s petition for a writ of

certiorari was pending in the United States Supreme

Court, the Court decided United States v. Booker, 543

U.S. 220 (2005).    The Court granted Bonilla’s petition

for certiorari and vacated our decision for

consideration in light of Booker.    See Bonilla v. United

States, 543 U.S. 1109 (2005).

    Bonilla did not make a Sixth Amendment objection to

the district court’s upward departure at sentencing, so

we review her sentence for plain error.    See United

States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).      To

prevail under the plain error standard, a defendant must

show that the error had an effect on the outcome of the

proceedings.    See United States v. Saldana, 427 F.3d

298, 308 (5th Cir. 2005); see also United States v.

Infante, 404 F.3d 376, 394-95 (5th Cir. 2005) (defendant

must show, “with a probability sufficient to undermine

confidence in the outcome, that if the judge had

sentenced him under an advisory sentencing regime rather

than a mandatory one, he would have received a lesser

sentence”).    The record reflects that the sentencing

                             2
judge affirmatively exercised his discretion to depart

upwardly from the applicable guideline range in this

case, and there is nothing before the court to even

suggest that Bonilla might have received a lesser

sentence under an advisory guideline regime.

    Accordingly, Bonilla has not met her burden of

showing that any error in this case affected the outcome

of her sentencing hearing.   See Saldana, 427 F.3d at 308

n.38 (“[W]e doubt whether a defendant could ever

overcome plain error review of a claimed Booker

violation in cases where the district court has upwardly

departed.”); United States v. Lee, 399 F.3d 864, 867

(7th Cir. 2005) (“By moving up, the judge evinces not

only a belief that discretion exists but also a

disposition to exercise it adversely to the accused.”).

We therefore AFFIRM Bonilla’s sentence.




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