                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   August 17, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-30681
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

HERBERT PEA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                   USDC No. 5:03-CR-50013-SMH-7
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Herbert Pea appeals his sentence following his guilty-plea

conviction for conspiracy to possess with intent to distribute 50

grams or more of a mixture and substance containing a detectable

amount of cocaine base.    He argues for the first time on appeal

that his sentence violated United States v. Booker, 125 S. Ct.

738 (2005).

     The district court’s enhancement of Pea’s sentence based

upon drug amounts not charged in the indictment and his


     *
       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this opinion should not be published and is not precedent except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. 04-30681
                                -2-

possession of a firearm during the offense was plainly erroneous

because those facts were not proven to a jury or admitted by Pea.

See Booker, 125 S. Ct. at 756, 764-65; United States v. Mares,

402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517).    Pea has not shown, however, that

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

at 520-21.   Pea argues that he does not have to show that the

error affected his substantial rights because the error is

structural or because the error should be presumed prejudicial.

These arguments are foreclosed.    See United States v. Malveaux,

411 F.3d 558, 560 n.9 (5th Cir. 2005), petition for cert. filed

(July 11, 2005) (No. 05-5297).

     AFFIRMED.
