                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 23, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-50919
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ANGEL C. RODRIGUEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 4:04-CR-80-2
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Angel C. Rodriguez appeals the sentence imposed following

his convictions relating to marihuana possession and

distribution.   He argues that the district court plainly erred in

sentencing him under the mandatory Sentencing Guidelines held

unconstitutional in United States v. Booker, 543 U.S. 220 (2005).

     Sentencing a defendant pursuant to a mandatory guidelines

scheme, without an accompanying Sixth Amendment violation,

constitutes “Fanfan” error.    See United States v. Villegas,


     *
       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this opinion should not be published and is not precedent except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. 04-50919
                                -2-

404 F.3d 355, 364 (5th Cir. 2005).   Rodriguez has met the first

two prongs of the plain error test because Fanfan error is

“error” that is “plain.”   United States v. Martinez-Lugo, 411

F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005).

Rodriguez, however, has not borne his burden of showing that the

error affected his substantial rights.    Id.   The district court

sua sponte reduced Rodriguez’s offense level and sentenced him to

the bottom of the applicable guidelines range; however, such

leniency is, standing alone, insufficient to meet the third prong

of the plain error analysis where, as here, “[t]he record offers

no basis for inferring that, had he used the guidelines as

advisory, the court would have reduced the sentence.”     Id. at 601

(internal quotation marks and citation omitted); see also United

States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert.

denied, 126 S. Ct. 264 (2005).

     AFFIRMED.
