                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 24, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-41297
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE MANUEL GUERRERO,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 1:03-CR-172-3
                       --------------------

Before GARZA, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Manuel Guerrero appeals the sentence imposed following

his guilty-plea conviction for possession with intent to

distribute more than 100 kilograms of marijuana.    He argues that

the district court erred in imposing his sentence based on the

mandatory United States Sentencing Guidelines scheme held

unconstitutional in United States v. Booker, 125 S. Ct. 738

(2005).   Because the Government explicitly does not rely on the

appeal waiver, we do not enforce it.   United States v. Rhodes,


     *
       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this opinion should not be published and is not precedent except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. 03-41297
                                  -2-

253 F.3d 800, 804 (5th Cir. 2001).    Because Guerrero did not

raise this issue in the district court, review is limited to

plain error.     See United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005), petition for cert. filed, No. 04-9517 (U.S. Mar. 31,

2005).   The district court’s application of the mandatory

Guidelines sentencing scheme is error that is plain.     Id.

However, Guerrero has not met his burden to establish that the

error affected his substantial rights as he has not shown that

the sentencing judge would have reached a significantly different

result under an advisory sentencing scheme rather than a

mandatory one.    Id. at 521.   Therefore, Guerrero has not shown

that the district court’s imposition of his sentence constituted

reversible plain error.    Accordingly, Guerrero’s sentence is

AFFIRMED.
