                                                         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. 04-20326
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

KEVIN RAY HALL,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. 4:03-CR-7-1
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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

PER CURIAM:*

     We previously affirmed the sentence imposed following Kevin

Ray Hall’s resentencing.     United States v. Hall, No. 04-20326

(5th Cir. Jan. 14, 2005) (unpublished).     The Supreme Court has

vacated and remanded for further consideration in light of United

States v. Booker, 125 S. Ct. 738 (2005).     We requested and

received supplemental letter briefs addressing the impact of

Booker.


     *
       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this opinion should not be published and is not precedent except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. 04-20326
                                 -2-

     Hall argues that his Sixth Amendment rights were violated

because his guidelines range and sentence were increased based on

the district court’s finding that the firearm he possessed was

stolen.    He also contends that the district court erred by

sentencing him under a mandatory guidelines scheme.    Hall asserts

that the error in applying the guidelines as mandatory is

structural and that prejudice should be presumed.

     Hall concedes that his structural error and presumed

prejudice arguments are foreclosed and raises them simply to

preserve further review.    See United States v. Malveaux, 411 F.3d

558, 561 n.9 (5th Cir. 2005), petition for cert. filed (July 11,

2005) (No. 05-5297).    Because Hall did not raise Sixth Amendment

error or the mandatory application of the guidelines as issues

before the district court, plain error review applies.     See

United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

petition for cert. filed (Mar. 31, 2005) (No. 04-9517).     This

court may correct forfeited errors only when the appellant shows

the following factors:    (1) there is an error, (2) that is clear

or obvious, and (3) that affects his substantial rights.       United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc) (citing United States v. Olano, 507 U.S. 725, 731-37

(1993)).   If these factors are established, the decision to

correct the forfeited error is within the sound discretion of the

court, and the court will not exercise that discretion unless the
                           No. 04-20326
                                -3-

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.   Olano, 507 U.S. at 735-36.

     To establish plain error under Mares, Hall must demonstrate

that the district court would have reached a significantly

different result had he been sentenced under advisory guidelines.

Mares, 402 F.3d at 521.   As Hall concedes, he cannot make this

showing.

     In our prior decision, we held that Hall’s challenge to the

sufficiency of the evidence of interstate commerce was barred by

the law of the case doctrine.   Because Booker does not change

this result, that portion of our prior decision is reinstated.

     The judgment of the district court is AFFIRMED.
