                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  March 8, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-41628
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RAMIRO PONCE,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:03-CR-621-1
                       --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Ramiro Ponce appeals his conviction and sentence following

his guilty plea to importing cocaine.   Ponce argues for the first

time on appeal that his sentence is unconstitutional under United

States v. Booker, 543 U.S. 220 (2005), because it was imposed

pursuant to a mandatory application of the Sentencing Guidelines.

This court reviews forfeited Booker errors for plain error.

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th

Cir.), cert. denied, 126 S. Ct. 267 (2005).     Thus, Ponce must


     *
       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this opinion should not be published and is not precedent except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. 04-41628
                                -2-

demonstrate (1) error, (2) that is plain, and (3) that affects

his substantial rights. Id. at 732.    If the first three

conditions are met, the court will reverse only if it finds that

the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.    Id. at 733.

     Ponce has established obvious error because he was sentenced

under a mandatory guidelines regime.    See id.   To establish the

third prong of plain error, however, Ponce must “point to

statements in the record by the sentencing judge demonstrating a

likelihood that the judge sentencing under an advisory scheme

rather than a mandatory one would have reached a significantly

different result.”   United States v. Pennell, 409 F.3d 240, 245

(5th Cir. 2005).

     Ponce’s argument that the error affected his substantial

rights because it is structural, or at least presumptively

prejudicial, has been rejected as inconsistent with this court’s

analysis in United States v. Mares, 402 F.3d 511 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005).    See United States v.

Malveaux, 411 F.3d 558, 560-61 n.9 (5th Cir.), cert. denied, 126

S. Ct. 194 (2005).   Ponce fails to show that the error otherwise

affected his substantial rights given that he points to

statements by the district court that were merely sympathetic and

not an indication that the district court wished to impose a

different sentence under Guidelines that were not mandatory.     See
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                               -3-

United States v. Creech, 408 F.3d 264, 272 (5th Cir.), cert.

denied, 126 S. Ct. 777 (2005).

     Ponce’s argument, raised for the first time on appeal, that

21 U.S.C. §§ 952 and 960(a) and (b) are facially unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000), because drug

quantity is an element of the offense that must be presented to

the trier of fact is foreclosed by this court’s precedent.     See

United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

     AFFIRMED.
