                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 November 9, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40085
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ROMMELL DUANE BENJAMIN,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 3:04-CR-2-ALL
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Rommell Duane Benjamin appeals the sentence imposed

following his guilty plea conviction for possession of five grams

or more of cocaine base.    He argues that he was sentenced under a

mandatory guideline sentencing system in violation of United

States v. Booker, 125 S. Ct. 738 (2005).      Benjamin contends that

the district court may have imposed a lesser sentence under a

discretionary system.

     Sentencing a defendant pursuant to a mandatory guideline

scheme, without an accompanying Sixth Amendment violation,


     *
       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this opinion should not be published and is not precedent except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. 05-40085
                                 -2-

constitutes “Fanfan” error.    United States v. Villegas, 404 F.3d

355, 364 (5th Cir. 2005)(discussing the distinction between the

two types of error addressed in Booker).    Where Fanfan error is

raised for the first time on appeal, review is for plain error.

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th

Cir.), cert. denied, 126 S. Ct. 267 (2005).

     Benjamin has met the first two prongs of the plain error

test because “Fanfan” error is “error” that is “plain.”       See id.

However, to meet the third prong of the analysis and show that

the error affected his substantial rights, Benjamin bears the

burden of “establish[ing] that the error affected the outcome of

the district court proceedings.”    Id. (internal quotation marks

and citation omitted).    Benjamin must show “that the sentencing

judge–-sentencing under an advisory scheme rather than a

mandatory one--would have reached a significantly different

result.”    United States v. Mares, 402 F.3d 511, 521 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005).

     Benjamin cannot show that the error affected his substantial

rights.    There is nothing in the record indicating that the

district court would have imposed a different sentence if it had

known that it was not bound by the sentencing guidelines.       See

United States v. Taylor, 409 F.3d 675, 677 (5th Cir. 2005).

Benjamin cannot demonstrate plain error.    The sentence is

AFFIRMED.
