                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 16, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-51231
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MARIO JIMENEZ-GANDARA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 3:04-CR-1408-ALL
                       --------------------

Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Mario Jimenez-Gandara (“Jimenez”) appeals his sentence for

having been found in the United States after having been

deported, in violation of 8 U.S.C. § 1326(a) and (b).      Jimenez

contends that his sentence must be vacated in light of United

States v. Booker, 125 S. Ct. 738 (2005), because the district

court was under the mistaken impression that the Sentencing

Guidelines were mandatory rather than advisory.   He maintains




     *
       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this opinion should not be published and is not precedent except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. 04-51231
                                -2-

that this was a “structural” error that affected the “framework”

of the entire proceeding against him.

     We review Jimenez’s contention for plain error because he

did not raise the issue in the district court.    United States v.

Valenzuela-Quevedo, ___ F.3d ___, No. 03-41754 (5th Cir. April

25, 2005), 2005 WL 941353, at *3 .   We agree with Jimenez that

the district court plainly erred when it sentenced him pursuant

to a mandatory guidelines system.    See Booker, 125 S. Ct. at 750,

768-69.   Jimenez has not met his burden of establishing plain

error, however, because the record does not suggest that the

district judge would have imposed a different sentence had she

been aware that the sentencing guidelines are merely advisory.

Valenzuela-Quevedo, 2005 WL 941353, at **3-4.

     AFFIRMED.
