                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                       F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                       December 1, 2005
                                FOR THE FIFTH CIRCUIT
                                 __________
                                                                                   Charles R. Fulbruge III
                                                                                           Clerk
                                          No. 04-40285
                                        Summary Calendar
                                     __________

UNITED STATES OF AMERICA,

                                                                                  Plaintiff-Appellee,

versus

TODD W. ALTSCHUL,

                                                                              Defendant-Appellant.

                        ______________________________

                          Appeal from the United States District Court
                               for the Eastern District of Texas
                                   (No. 1:02-CR-137-ALL)
                        ______________________________

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

         This court affirmed the sentence of Todd W. Altschul. See United States v. Altschul,

115 Fed. Appx. 712 (5th Cir. 2004). The Supreme Court vacated and remanded for further

consideration in light of United States v. Booker, 543 U.S. —, 125 S. Ct. 738 (2005). See Altschul

v. United States, — U.S. —, 125 S. Ct. 1955 (2005). This court requested and received

supplemental letter briefs addressing the impact of Booker. Altschul argues that the district court

erroneously based his sentence on facts that were neither admitted by him nor found by the jury. Our

*
 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 R. 47.5, the court has determined that this opinion should not be published and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.
                                                    -2-

review is for plain error due to his failure to raise an appropriate objection in the district court. See

United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert. denied, — U.S. —, 126 S. Ct. 43

(2005).

          To establish plain error, Altschul must show that there is error, that it is cl ear, and that it

affects both his substantial rights and the integrity of the proceedings. See United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732–33 (5th Cir. 2005), cert. denied, — U.S. —, 126 S. Ct. 267

(2005). Altschul has met the first and second prongs of this test because the district court based his

sentence upon facts that were neither admitted by him nor found by the jury. See Mares, 402 F.3d

at 521. Nevertheless, Altschul is not entitled to relief, as the record does not show that he likely

would have received a more lenient sentence if the district court had acted under an advisory

sentencing scheme. See Mares, 402 F.3d at 521. Altschul thus has not shown that this error affected

his substantial rights. See id. Because nothing in the Supreme Court’s Booker decision requires us

to change our prior opinion in this case, we reinstate that opinion. The judgment of the district court

is AFFIRMED.
