                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                       June 14, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                               03-41071
                           Summary Calendar


                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus

                         HERMANEGILDO ALANIZ,

                                                   Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                            (C-02-CR-340-5)


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     On a previous appeal, we affirmed Hermanegildo Alaniz’s gulity

plea conviction and sentence for conspiracy to possess more than

100 kilograms of marijuana with intent to distribute.              United

States v. Alaniz, 03-41071, 2004 WL 1427086 (5th Cir. 23 June

2004). The Supreme Court granted a writ of certiorari; vacated the

judgment; and remanded for further consideration in the light of



     *
       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this opinion should not be published and is not precedent except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.
United States v. Booker, 125 S. Ct. 738 (2005).                     Alaniz v. U.S.,

125 S. Ct. 1022 (2005).

     Based on Apprendi v. New Jersey, 530 U.S. 466 (2000), Alaniz

first   challenged   the    constitutionality          of    his    conviction   and

sentence, in his appeal to our court.            Because Alaniz did not raise

in district court his objection to the constitutionality of his

sentence, our review is only for plain error.                      United States v.

Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed,

(U.S. 31 Mar. 2005) (No. 04-9517).             Under plain-error review, our

court may correct a defendant's sentence only if there is a clear

or obvious error that affects his substantial rights. E.g., United

States v. Cotton, 535 U.S. 625, 631 (2002).                 Even then, we retain

discretion whether to correct the error; generally, we will not do

so unless the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.                  Id.

     Alaniz has met the first two prongs of plain error:                         the

district court erred in sentencing him under a mandatory, as

opposed to advisory, guidelines regime; and that error was “plain”.

To satisfy the third prong, Alaniz must show by “a reasonable

probability that, but for the error claimed, the result of the

proceeding would have been different”. United States v. Dominguez-

Benitez, 124 S. Ct. 2333, 2339 (2004) (quotation and internal

brackets omitted).         Thus,   the       inquiry   is    whether    Alaniz   can

demonstrate the result of his proceeding would have likely been

                                         2
significantly different under an advisory regime.      Mares, 402 F.3d

at 521.      Alaniz has pointed to nothing in the record indicating

that the district court would have sentenced him differently under

an advisory sentencing regime.       (For possible further review, he

maintains Mares is erroneous.)       Therefore, he has not established

that   his   substantial   rights   were   affected.   Accordingly,   we

reinstate our judgment affirming Alaniz’s conviction and sentence.

                                                           AFFIRMED




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