                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40694
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DEAN THOMAS MORTON, JR.,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 1:03-CR-203-ALL-MAC
                       --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Dean Thomas Morton, Jr., appeals following his guilty plea

to possession with intent to distribute less than 100 grams of a

mixture containing a detectible amount of phencyclidine.       The

Government has waived Morton’s appeal waiver in the plea

agreement by not seeking to enforce it.     See United States v.

Story, 439 F.3d 226, 230 (5th Cir. 2006).

     Morton argues that his sentence is invalid in light of

United States v. Booker, 543 U.S. 220 (2005), because the


     *
       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this opinion should not be published and is not precedent except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. 04-40694
                                 -2-

district court applied the Sentencing Guidelines as if they were

mandatory.    We review for plain error.   See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied,

126 S. Ct. 267 (2005).    To prevail under a plain-error analysis,

Morton must show, among other things, that the error prejudiced

him by adversely affecting his substantial rights.     See id. at

733.

       Morton fails to identify anything in the record to suggest

that his sentence would have been lower had the court applied the

Sentencing Guidelines as advisory rather than mandatory.     See id.

He thus fails to establish prejudice to his substantial rights.

See id.    The judgment of the district court is AFFIRMED.
