                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 12, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41047
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAVID ECHAVARRIA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-272-1
                      --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     David Echavarria appeals his guilty-plea conviction of

possession with intent to distribute more than 100 kilograms

(approximately 226 kilograms) of marijuana.   Echavarria argues

that the district court misapplied the Sentencing Guidelines by

assigning one criminal history point to his Nebraska state

misdemeanor conviction for flight to avoid arrest.     He argues for

the first time on appeal that this conviction should not have

earned any criminal history points because, under Nebraska law,


     *
       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this opinion should not be published and is not precedent except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. 04-41047
                                -2-

flight to avoid arrest is similar to resisting arrest under

U.S.S.G. § 4A1.2(c)(1).   He further argues that this error

affected his substantial rights and requires a remand for

resentencing.

     As Echavarria concedes, review is for plain error.     To

establish plain error, Echavarria must demonstrate an obvious

legal error that affects his substantial rights.   See United

States v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc).

“[I]n order for plain error to affect substantial rights, the

error must have been prejudicial:   It must have affected the

outcome of the district court proceedings.”   United States v.

Leonard, 157 F.3d 343, 346 (5th Cir. 1998) (internal quotation

marks and citation omitted).

     In the context of a sentencing issue reviewed for plain

error, we have held that “if the trial judge, on remand, could

reinstate the same sentence, it will uphold the sentence imposed

despite the trial court’s error.”   Id.; see also United States v.

Wheeler, 322 F.3d 823, 828 (5th Cir. 2003) (under plain-error

review, “the question is not whether the district court would

have chosen the same sentence absent the error, but whether it

could have done so”).   Here, if Echavarria’s criminal history

score had been nine, his criminal history category would have

been IV, and the guideline range would have been 70 to 87 months.

Because the district court, on remand, could reinstate the same

sentence for Echavarria, any error in the district court’s
                            No. 04-41047
                                 -3-

guideline calculation does not warrant relief under plain-error

review.    See Wheeler, 322 F.3d at 828; see also Leonard, 157 F.3d

at 346.

     Echavarria also argues that under Apprendi v. New Jersey,

530 U.S. 466 (2000), the provisions of 21 U.S.C. § 841(a) and (b)

are facially unconstitutional.    As Echavarria concedes, we have

rejected the argument that Apprendi rendered 21 U.S.C. § 841’s

sentencing provisions facially unconstitutional.       See United

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

States v. Fort, 248 F.3d 475, 482-83 (5th Cir. 2001).

     In his supplemental brief, filed after the Supreme Court’s

decision in United States v. Booker, 125 S. Ct. 738 (2005),

Echavarria argues that plain error occurred in his case because

he was sentenced under mandatory guidelines.    He asserts that his

sentence should be vacated and the matter remanded for

resentencing.

     Echavarria has not established that this error affected his

substantial rights.    The record does not establish that the

sentencing court would have imposed a different sentence had it

been proceeding under an advisory guideline scheme.       See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 733-34 (5th Cir.

2005).    The district court’s judgment is AFFIRMED.
