                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 4, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40648
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ELIAS GUTIERREZ-SUAREZ,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 7:04-CR-18-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 Elias Gutierrez-Suarez.

United States v. Gutierrez-Suarez, No. 04-40648, 2004 WL 2933382

(5th Cir. Dec. 17, 2004).     The Supreme Court vacated and remanded

for further consideration in light of United States v. Booker,

125 S. Ct. 738 (2005).     Gutierrez-Suarez v. United States,

No. 04-9316 (Jun. 7, 2005).     We requested and received

supplemental briefs addressing Booker’s impact.     Having


     *
       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this opinion should not be published and is not precedent except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. 04-40648
                                  -2-

reconsidered our decision pursuant to the Supreme Court’s

instructions, we reinstate our judgment affirming the conviction

and sentence.

     Gutierrez-Suarez argues that he is entitled to resentencing

because the district court sentenced him under the mandatory

application of the United States Sentencing Guidelines that was

prohibited by Booker.

     In United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th

Cir. 2005), this court rejected the argument that Gutierrez-

Suarez seeks to preserve for further review, that application of

the guidelines under the mandatory system is structural and

presumptively prejudicial.    Instead, such error is subject to

the plain error analysis set forth in United States v. Mares,

402 F.3d 511 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517).    Martinez-Lugo, 411 F.3d at 600-01.   Because

Gutierrez-Suarez raised an argument related to Blakely v.

Washington, 542 U.S. 296 (2004), in his initial brief before this

court, his argument is reviewable for plain error.    See United

States v. Cruz, __ F.3d __, No. 03-40886, 2005 WL 1706518, *2

(5th Cir. July 22, 2005).

     Gutierrez-Suarez concedes that the district court did not

give any indication that his sentence would have been lower if

the district court had sentenced him under the post-Booker

advisory regime.   He has therefore failed to show that the error
                           No. 04-40648
                                -3-

affected his substantial rights and has thus failed to establish

plain error.   See Martinez-Lugo, 411 F.3d at 600-01.

     We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in

this case.   We therefore REINSTATE OUR JUDGMENT affirming

Gutierrez-Suarez’s conviction and sentence.
