                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 30, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 04-40601
                          Conference Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

SERGIO DURAN-GOMEZ, also known as Sergio Duran

                       Defendant - Appellant

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 1:04-CR-94-ALL
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     We affirmed the conviction and sentence of Sergio Duran-

Gomez (“Duran”).     United States v. Duran-Gomez, No. 04-40601

(Dec. 17, 2004) (per curiam).     The Supreme Court vacated and

remanded for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005).     We requested and received

supplemental letter briefs addressing the impact of Booker.




     *
       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this opinion should not be published and is not precedent except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. 04-40601
                                 -2-

     Duran argued in his initial brief and in his petition for a

writ of certiorari that his sentence should be vacated because he

was sentenced under the erroneous assumption that the Guidelines

were mandatory.   Our review of this issue is for plain error.

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

2005), petition for cert. filed (July 25, 2005) (No. 05-5556).

Although Duran has satisfied the first two criteria for

establishing plain error, he is required to demonstrate 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.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517);

Valenzuela-Quevedo, 407 F.3d at 733.     Duran has not met his

burden because there is “no evidence in the record suggesting

that the district court would have imposed a lesser sentence

under an advisory guidelines system.”      United States v. Taylor,

409 F.3d 675, 677 (5th Cir. 2005).

     In his initial brief, Duran challenged the constitutionality

of 8 U.S.C. § 1326(b) and the validity of Almendarez-Torres v.

United States, 523 U.S. 224 (1998).     Duran conceded that his

argument was foreclosed by existing precedent, but he sought to

preserve the issue for further review.     Nothing in the Supreme

Court’s Booker decision affected the validity of Almendarez-

Torres.    See Booker, 125 S. Ct. at 756 (the Booker holding

applies to any fact (other than a prior conviction)).     The
                            No. 04-40601
                                 -3-

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), left

Almendarez-Torres intact.   See Apprendi, 530 U.S. at 489-90

(“fact of a prior conviction” need not be submitted to a jury).

     Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we

therefore reinstate our judgment affirming Duran’s conviction.

For the reasons set forth in this opinion on remand, his sentence

is also AFFIRMED.

     AFFIRMED.
