                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     May 4, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-50501
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

KEVIN DORAL ROBINSON,
also known as KD Robinson,
                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                         USDC No. 6:03-CR-38-1
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of Kevin Doral Robinson.

United States v. Robinson, 115 F. App’x 246 (5th Cir. 2004),

cert. granted, vacated and remanded, 125 S. Ct. 1946 (2005).           The

Supreme Court vacated and remanded for further consideration in

light of United States v. Booker, 543 U.S. 220 (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this opinion should not be published and is not precedent except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. 04-50501
                                 -2-

       Robinson argues that in light of Booker, his sentence must

be vacated because it was based on judicial fact-findings made in

violation of the Sixth Amendment.    He specifically challenges the

constitutionality of the district court’s drug quantity

calculation and the enhancement to his sentence for possession of

a firearm.    Robinson asserts that the record reflects that the

district court would “likely” impose a lesser sentence if his

case was remanded.

       As an initial matter, because the Government has not invoked

the waiver provisions in the plea agreement, this appeal of

Robinson’s sentence is not precluded.      See United States v.

Story, 439 F.3d 226, 230-31 (5th Cir. 2006).     Robinson concedes

that he did not raise a constitutional challenge to his sentence

before the district court and that review is for plain error.

See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005).    The district court did commit

Booker error because Robinson’s sentence was enhanced based on

the district court’s findings as to the drug quantity calculation

and the firearm enhancement.    See Booker, 543 U.S. at 244.

However, Robinson fails to meet his burden of showing that the

error affected his substantial rights.     See Mares, 402 F.3d at

521.    There is nothing in the record indicating that the district

court would have imposed a lower sentence under an advisory

guidelines scheme.    See id.

       Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we
                          No. 04-50501
                               -3-

reinstate our judgment affirming Robinson’s conviction and

sentence.

     AFFIRMED.
