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

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 04-40183
                       Conference Calendar


UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

versus

LUIS MANUEL SAYAS-MONTOYA,

                                   Defendant-Appellant.

                             * * * * *
                        Consolidated with
                           No. 04-40213
                             * * * * *
UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

versus

LUIS MANUEL SAYAS,

                                   Defendant-Appellant.


                       --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                      USDC No. 1:03-CR-815-1
                       --------------------

     ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
                    No. 04-40183 c/w No. 04-40213
                                 -2-

PER CURIAM:*

     This court affirmed the conviction and sentence of Luis

Manuel Sayas-Montoya.    See United States v. Sayas-Montoya,

115 Fed. Appx. 298 (5th Cir. 2004).    The Supreme Court vacated

and remanded for further consideration in light of United States

v. Booker, 125 S. Ct. 738 (2005).     See De La Cruz v. United

States, 125 S. Ct. 1995 (2005).   This court requested and

received supplemental letter briefs addressing the impact of

Booker.

     Sayas-Montoya argues that the district court erred in

sentencing him pursuant to a mandatory application of the

Guidelines.    He concedes that he did not raise this issue in the

district court and that review is for plain error only.      He

further argues that this error is structural and that prejudice

should be presumed.   He contends that this claim is not precluded

by the appellate waiver clause in his plea agreement because he

retained his right to challenge an illegal sentence.

     We agree that Sayas-Montoya’s Booker-based challenge to his

sentence is not precluded by the waiver because the claim

presented falls within the waiver’s exception.      Nevertheless,

Sayas-Montoya is not entitled to relief.    His contention that the

error arising from the district court’s erroneous belief that the

Guidelines were mandatory is structural and gives rise to a


     *
       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. 04-40183 c/w No. 04-40213
                               -3-

presumption of prejudice is 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); see also United States

v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir. 2005).   Further,

Sayas-Montoya is not entitled to relief under the plain-error

standard because he has not shown that his sentence would have

been significantly different if the district court had proceeded

under an advisory Guidelines system.   See United States v. Mares,

402 F.3d 511, 521 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517); see also United States v. Valenzuela-

Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005), petition for cert.

filed (July 25, 2005) (No. 05-5556).

     Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we

reinstate our judgment affirming Sayas-Montoya’s conviction and

sentence.

     AFFIRMED.
