                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-21036
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MARSHALL RAY CUSTARD, JR.,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:05-CR-248
                      --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Marshall Ray Custard, Jr., pleaded guilty to transportation

of a minor with intent to engage in criminal sexual activity,

for which he was sentenced to 21 months of imprisonment to be

followed by a three-year term of supervised release.     He now

appeals the 24-month prison sentence imposed upon the revocation

of his term of supervised release.

     Custard contends that the district court imposed a sentence

above the statutory maximum.   He argues that, under the

principles announced in Blakely v. Washington, 542 U.S. 296

     *
       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this opinion should not be published and is not precedent except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. 05-21036
                                -2-

(2004), and United States v. Booker, 543 U.S. 220 (2005), the

maximum revocation sentence that could have been imposed in light

of his original sentence, based upon facts admitted by him, was

21 months, which was the top of the sentencing guideline range

found applicable by the district court.   He argues that 21

months, rather than the former statutory maximum of 15 years

under 18 U.S.C. § 2423(a), governs the classification of his

underlying felony for purposes of revocation of supervised

release.   See 18 U.S.C. §§ 3559(a), 3583(e).

     Custard correctly acknowledges that his argument is

foreclosed by this court’s decision in United States v. Alfaro-

Hernandez, 453 F.3d 280, 281-82 (5th Cir. 2006), but he wishes to

preserve the argument for possible further Supreme Court review.

     AFFIRMED.
