                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                      November 22, 2005

                             _______________________               Charles R. Fulbruge III
                                                                           Clerk
                                   No. 04-40016
                             _______________________

                         UNITED STATES OF AMERICA,
                                                           Plaintiff-Appellee,

                                     versus

                               BERNARD CUNNINGHAM,


                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:03-CR-844-ALL
_________________________________________________________________

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

              This   court    affirmed   the    judgment   of   conviction     and

sentence of Bernard Cunningham.                United States v. Cunningham,

No. 04-40016 (5th Cir. Jan. 4, 2005).             The Supreme Court vacated

and remanded for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005).           See Cunningham v. United States,

125 S. Ct. 2274 (2005).           We requested and received supplemental

letter briefs addressing the impact of Booker.

             In his original appeal to this court, citing Apprendi v.



      *
       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should not be published and is not precedent except under the limited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.
New Jersey, 530 U.S. 466 (2000), Cunningham claimed that 21 U.S.C.

§ 841(a) and (b) were unconstitutional.               Because De Leon-Rocha did

not make this argument at the district court, we review for plain

error. See United States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir.

2005).

            Under the Booker holding that changes the Guidelines from

mandatory to advisory, there is error in this case because the

district court viewed and acted under the Sentencing Guidelines as

mandatory and not discretionary.             Cunningham, however, cannot meet

his burden to identify evidence in the record suggesting that the

district court “would have reached a significantly different result”

under an advisory scheme rather than a mandatory one. United States

v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), cert. denied, 126 S.

Ct.   43   (2005).        After   Cunningham        continued   to     maintain     his

innocence, the sentencing judge did explain to him that he could not

let him go free——some sentence was warranted. These comments, given

the   mandatory     minimum   sentence       that    Cunningham       faced,   do   not

establish that Cunningham’s substantial rights were affected, but

point instead to the judge’s explanation of the sentencing process.

As this court has held, a sentencing judge’s expression of “mere

sympathy” or “mere summary” of the law “is not indicative of a

judge’s    desire    to    sentence   differently       under     a    non-mandatory

Guidelines regime.” United States v. Creech, 408 F.3d 264, 272 (5th

Cir. 2005). Further, the district court sentenced Cunningham in the

middle of the applicable Guideline range.

                                         2
          Because nothing in the Supreme Court's Booker decision

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

to our prior determination and therefore reinstate our judgment

AFFIRMING Cunningham’s conviction and sentence.

                                    AFFIRMED.




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