                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                         UNITED STATES COURT OF APPEALS                   September 27, 2005

                             FOR THE FIFTH CIRCUIT                      Charles R. Fulbruge III
                                                                                Clerk



                                       04-40540
                                   Summary Calendar




       UNITED STATES of AMERICA,

                                                   Plaintiff-Appellee,

                                          v.

       JOHN RAY FLORES,

                                                   Defendant-Appellant.



           Appeal from the United States District Court for the
                        Southern District of Texas



       ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

       The     Supreme     Court    granted      Defendant-Appellant          Flores’s

petition for writ of certiorari, vacated our previous judgment in

this       case,   and   remanded   the   case    to   this   Court     for    further

consideration in light of United States v. Booker, –- U.S. –-, 125



       *
        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this opinion should not be published and is not precedent except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.
S.Ct. 738 (2005).    On direct appeal, Flores raised for the first

time the claims that: the district court’s upward departure was

improper in view of Blakely v. Washington, -- U.S. --, 124 S.Ct.

2531 (2004); and 21 U.S.C. §§ 952 and 960 are unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).

Concluding that those claims were foreclosed by our precedent, we

affirmed Flores’s conviction and sentence.            See United States v.

Flores,    122   Fed.Appx.    720   (5th    Cir.   2004)    (per   curiam)

(unpublished).

     Flores subsequently filed a petition for writ of certiorari,

requesting relief under Booker.      After the Supreme Court remanded

the case, pursuant to our instructions, the parties briefed the

issue of   whether   Booker   impacted     Flores’s    sentence.   We   now

reconsider the case in light of Booker and decide to reinstate our

previous judgment affirming Flores’s conviction and sentence.

     Relying on Booker, Flores argues that the Sixth Amendment was

violated because his enhanced sentence was based on the district

court’s determination of a fact not found by the jury or admitted

by the defendant.    He further argues that the sentencing pursuant

to a mandatory sentencing guidelines system in his case constitutes

Booker error.

     Flores admits that because he did not raise a Blakely/Booker

objection in the district court this claim must be reviewed for

plain error.     See United States v. Mares, 402 F.3d 511, 520 (5th

                                    2
Cir.), petition for cert. filed, (Mar. 31, 2005) (No. 04-9517).

Under     the   plain   error     standard,    this    Court     may   correct   a

defendant’s sentence only if there is (1) an error; (2) that is

clear and obvious; and (3) that affects the defendant’s substantial

rights. Mares, 402 F.3d at 520.          If all three requirements are met,

an   appellate    court   may    exercise     its   discretion    to   correct   a

forfeited error if the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.                  Id.

      In response to this Court’s question, Flores admits that he

“cannot point to any statement in the record that could support an

inference that the district court would likely impose a lesser

sentence on remand.” Clearly, Flores cannot shoulder his burden of

demonstrating that the result would have likely been different had

the district court sentenced him under the Booker advisory regime.

Mares, 402 F.3d at 522.         Flores thus cannot satisfy the third prong

of the plain error test.          Id.1   Accordingly, because there is no

plain error, we reinstate our judgment affirming the defendant’s

conviction and sentence.




      1
        To preserve the issues for further review, Flores argues
that the sentencing error was “structural” and that application of
Booker’s remedy would constitute an ex post facto violation.
However, as acknowledged by Flores, this Court has rejected these
claims. See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005) (rejecting claim that sentencing under a mandatory
regime was “structural”); United States v. Scroggins, 411 F.3d 572,
576 (5th Cir. 2005) (rejecting contention that applying the
advisory guidelines would constitute an ex post facto violation).

                                         3
AFFIRMED.




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