                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                      January 24, 2006
                                FOR THE FIFTH CIRCUIT
                                                                                   Charles R. Fulbruge III
                                  ________________________                                 Clerk
                                        No. 04-40696
                                      Summary Calendar
                                  ________________________


UNITED STATES OF AMERICA,

                                                                                  Plaintiff-Appellee,

versus

BRYAN GENE BERRYMAN,

                                                                              Defendant-Appellant.

                                  ________________________
                           Appeal from the United States District Court
                                for the Eastern District of Texas
                                  No. 1:03-CR-143-ALL-MAC
                                 ________________________

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

         This court affirmed the sentence of Bryan Gene Berryman. United States v. Berryman, 115

F. App’x 240 (5th Cir. 2004). The Supreme Court vacated and remanded for further consideration

in light of United States v. Booker, 543 U.S. 220 (2005). Berryman v. United States, 125 S. Ct. 1950

(2005). This court 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 R. 47.5, the court has determined that this opinion should not be published and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. 04-40696
                                                  -2-

        Berryman argues that the district court erred under Booker in enhancing his sentence based

on facts not admitted by him or found by a jury and in sentencing him under the mandatory guideline

scheme held unconstitutional in Booker. As Berryman concedes, our review is for plain error due to

his failure to raise an appropriate objection in the district court.

        Under the plain error standard of review, the appellant must show that (1) there is an error

(2) that is clear or obvious and (3) that affects his substantial rights. United States v. Olano, 507 U.S.

725, 732 (1993). If these factors are established, the decision to correct the forfeited error is within

this court’s sound discretion, which will not be exercised unless the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

        The district court’s enhancement of Berryman’s sentence pursuant to a mandatory guideline

scheme based on facts not found by a jury or admitted by him constituted error that was plain. See

United States v. Mares, 402 F.3d 511, 520–21 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

However, Berryman has failed to demonstrate, with a probability sufficient to undermine confidence

in the outcome, that the error affected his substantial rights. See Mares, 402 F.3d at 520–21. He can

point to nothing in the record to show that he likely would have received a more lenient sentence if

the district court had acted under an advisory sentencing scheme. See id. Moreover, this court has

rejected his arguments that a Booker error is a structural error and that such errors are presumed to

be prejudicial. See United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126

S. Ct. 194 (2005).

        Nothing in the Supreme Court’s Booker decision requires us to change our prior opinion in

this case. Accordingly, we reinstate that opinion. The judgment of the district court is AFFIRMED.
