                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-10283
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

PATRICK WIMBISH,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 4:03-CR-259-1-A
                      --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Patrick Wimbish appeals his sentence following his guilty

plea conviction for 1) aiding and abetting the possession with

the intent to distribute methylenedioxymethamphetamine and 2)

aiding and abetting the unlawful possession of a firearm in

furtherance of a drug-trafficking offense.    Citing Blakely v.

Washington, 124 S. Ct. 2531 (2004), and by extension, United

States v. Booker, 125 S. Ct. 738 (2005), Wimbish argues that his

sentence is unconstitutional because it was based upon findings


     *
       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this opinion should not be published and is not precedent except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. 04-10283
                                -2-

that were neither admitted by Wimbish nor found by a jury beyond

a reasonable doubt.   As Wimbish failed to raise this claim in the

district court, our review is for plain error.    See United States

v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct.

43 (2005).

     Wimbish meets the first two prongs of the plain error test

because his sentence was enhanced based on facts found by the

district court, which constitutes obvious error after Booker.

See id. at 521.   Nevertheless, Wimbish’s Booker claim fails at

the third step of the plain error test because he has not shown

that the error affected his substantial rights.   There is no

indication in the record that the district court would have

imposed a lower sentence under an advisory as opposed to a

mandatory sentencing guidelines regime.   See id. at 522.

     Wimbish next asserts, also for the first time on appeal,

that the Government’s refusal to file a U.S.S.G. § 5K1.1 motion

for downward departure based on Wimbish’s substantial assistance

was “totally irrational and amounted to a denial of due process.”

Because Wimbish neither shows that the Government bargained away

its discretion to file a U.S.S.G. § 5K1.1 motion nor argues that

the Government acted with unconstitutional motive, his downward

departure claim is not reviewable.   See Wade v. United States,

504 U.S. 181, 185-87 (1992); United States v. Urbani, 967 F.2d

106, 110-11 (5th Cir. 1992).

     AFFIRMED.
