                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS            April 6, 2006
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                              No. 03-41569
                          Conference Calendar



UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,
versus

MANUEL VILLANUEVA,

                                              Defendant-Appellant.


                           - - - - - - - - - -
              Appeal from the United States District Court
                   for the Southern District of Texas
                          (No. 5:03-CR-914-01)
                           - - - - - - - - - -
         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.

PER CURIAM:*

     This matter is before us on remand from the United States

Supreme Court for reconsideration in light of its recent opinion in

United States v. Booker.1        At our request, the parties have

submitted supplemental letter briefs addressing the impact of

Booker.     For the following reasons, we find that Booker does not

affect Defendant-Appellant Manuel Villanueva’s sentence.

                            I.   BACKGROUND




     *
        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this opinion should not be published and is not precedent except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.
     1
         543 U.S. ——, 125 S. Ct. 738 (2005).
      In July 2003, Villanueva pleaded guilty, pursuant to a plea

agreement, to one count of transporting undocumented aliens for

financial gain in violation of 8 U.S.C. § 1324.                        His base offense

level under USSG § 2L1.2(a) was twelve, and the presentence report

recommended,      pursuant       to     §        2L1.1(b)(2)(A),        a   three-level

enhancement based on the number of aliens he smuggled.                               The

district court additionally increased the base offense level to

eighteen under § 2L1.1(b)(5), based on its finding that Villanueva

was high on heroin at the time of his offense and thereby created

a substantial risk of death or serious bodily injury to the aliens

he   was     transporting     (“reckless            endangerment         enhancement”).

Finally, Villanueva received a three-level reduction for acceptance

of   responsibility    under       §§       3E1.1(a)      &     (b).     The   resulting

imprisonment range under the sentencing guidelines was 41 to 51

months.      The district court sentenced Villanueva to 51 months’

imprisonment to be followed by three years of supervised release.

      At his sentencing Villanueva denied having used heroin on the

day of     the   offense   and     objected         to    the    three-level    reckless

endangerment enhancement, contending that there was insufficient

evidence to support the enhancement.                 Villanueva did not make any

Blakely-2 or Booker-type objections in the district court, however,

as his sentencing occurred several months before either of these

decisions issued.

      On appeal, Villanueva again challenged the sufficiency of the

evidence     supporting      the      reckless           endangerment       enhancement.

      2
          Blakely v. Washington, 542 U.S. 296 (2004).
                                             2
Additionally,    during   the    pendency     of    the    appeal   Blakely       was

decided, and we granted Villanueva’s request for leave to file a

supplemental    brief   asserting     “that   the     [enhancement]        violated

Blakely ... because it was based on facts that were not charged in

his indictment, were not found by a jury beyond a reasonable doubt,

and were not admitted by him at his plea hearing.”3                     We affirmed

the sentence in an unpublished opinion, noting that the Blakely

argument was    foreclosed      by   our   decision       in   United    States    v.

Pineiro, which held Blakely inapplicable to the federal sentencing

guidelines.4

     In his petition to the United States Supreme Court for a writ

of certiorari, Villanueva again asserted Blakely-type error and

requested that the Supreme Court remand his case for further

consideration under its then-pending decision in Booker.                      By a

memorandum of the acting Solicitor General, the Government also

recommended a remand for further consideration in light of Booker,

which the Supreme Court granted.

                             II.     DISCUSSION

A.   Standard of Review

     Villanueva raised his Booker claims for the first time on

appeal.    Therefore, we review for plain error.5              This means that we

will not remand for resentencing unless there is (1) error, (2)

     3
       United States v. Villanueva, No. 03-41569, 111 Fed. Appx.
312 (5th Cir. Oct. 20, 2004) (unpublished opinion).
     4
      Id. (citing United States v. Pineiro, 377 F.3d 464 (5th Cir.
2004)).
     5
         United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
                                       3
that error is plain, and (3) it affects substantial rights.6                  If

the circumstances meet all three criteria, we may exercise our

discretion to notice the error, but only if it “seriously affects

the    fairness,     integrity,    or    public     reputation    of    judicial

proceedings.”7

       Since      Booker,    sentencing     under     mandatory        Guidelines

constitutes (1) error, and (2) that error is plain.8               Whether the

error affects substantial rights is a more complex inquiry in which

the defendant bears the burden of proof.            He carries his burden if

he    can     “demonstrate   a   probability      ‘sufficient    to    undermine

confidence in the outcome.’”9           The defendant demonstrates such a

probability when he identifies from the record an indication that

the sentencing judge would have reached a significantly different

result under an advisory Guidelines scheme.10

B.     Merits

       Villanueva satisfies the first two prongs of our plain error

review because his sentence resulted from application of the

Guidelines in their mandatory form.            He has not, however, met his

burden of showing that this error affected his substantial rights,

as required under Mares. Villanueva acknowledges that this circuit


       6
            United States v. Cotton, 535 U.S. 625, 631 (2002).
       7
            Id.
       8
            Mares, 402 F.3d at 521.
       9
      Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74
(2004)).
       10
            Id. at 522.
                                        4
has rejected the arguments that Booker error is structural or

otherwise reversible per se,11 or presumptively prejudicial,12 but

mentions those arguments only to preserve them for further review.

Next, Villanueva urges us to follow the approach taken by the Tenth

Circuit in United States v. Dazey,13 rather than our own.   Mares,

however, is the settled law of this circuit, and we may revisit it

only en banc or following a Supreme Court decision that effectively

overturns it.    As Villanueva presents no viable ground for remand

under Mares, we affirm his sentence.

                           III.   CONCLUSION

     Villanueva has failed to satisfy his burden of demonstrating

that the plain error at his sentencing affected his substantial

rights.    His sentence is AFFIRMED.




     11
       See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005); United States v. Arnold, 416 F.3d 349, 2005 WL 1546254
at *9 n.23 (5th Cir. 2005).
     12
          Arnold, 419 F.3d 349, 2005 WL at *9 n.23.
     13
          403 F.3d 1147 (10th Cir. 2005).
                                   5
