                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  March 7, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-20065
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MANUEL J. GAY,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:04-CR-11-ALL
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Manuel J. Gay appeals his sentence following his guilty-plea

conviction for aiding and abetting to possess with the intent to

distribute cocaine and cocaine base.    Gay argues that the

district court reversibly erred under United States v. Booker,

543 U.S. 220, 125 S. Ct. 738 (2005), by sentencing him pursuant

to a mandatory application of the Sentencing Guidelines.         He

contends that the error was structural and insusceptible of

harmless error analysis.    We have previously rejected this


     *
       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this opinion should not be published and is not precedent except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. 05-20065
                                  -2-

specific argument.     See United States v. Walters, 418 F.3d 461,

463 (5th Cir. 2005).    Alternatively, Gay argues that the record

precludes a finding of harmlessness given his inability, under

the mandatory scheme, to raise various sentencing factors that

could have resulted in a lower sentence.    The factors include the

sentencing disparities between crack and powder cocaine, the

disproportionate number of harsher crack sentences imposed upon

African-Americans, and the lower recidivism rate for older

defendants.   Because the district court was unable to consider

these and other factors, Gay secondarily contends that his

sentence was unreasonable.    As Gay’s sentence was imposed pre-

Booker, the reasonableness standard of review does not apply.

See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005).

     The district court committed “Fanfan” error by sentencing

Gay pursuant to a mandatory guidelines scheme.     See Walters, 418

F.3d at 463-64.   As the Government concedes, we review for

harmless error.     See id. at 464.

     The Government carries its burden of showing beyond a

reasonable doubt that the error did not affect Gay’s sentence.

At sentencing, the district court announced that Gay would be

subject to a harsher, 180-month sentence under an advisory

guideline regime.    Under these circumstances, the imposition of

Gay’s 150-month sentence under the then mandatory guidelines

scheme was harmless.     See United States v. Saldana, 427 F.3d 298,
                           No. 05-20065
                                -3-

314 (5th Cir.), cert. denied, 126 S. Ct. 810 (2005), and cert.

denied, __ S. Ct. __, 2006 WL 37834 (U.S. Jan. 9, 2006).

     Gay also contends that the district court’s assessment of

criminal history points based on the dates of, and terms of

imprisonment for, Gay’s prior convictions implicates Booker Sixth

Amendment concerns.   Even if the district court’s assessment

violated the Sixth Amendment under Booker, the error was harmless

in light of the alternate harsher sentence announced by the

district court.   See United States v. Pineiro, 410 F.3d 282, 284

& n.4 (5th Cir. 2005).

     AFFIRMED.
