                                                         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. 04-40794
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE REYES ESPINOZA-CORTEZ,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 1:04-CR-42-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 Jose Reyes Espinoza-

Cortez.     United States v. Espinoza-Cortez, No. 04-40794 (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).

     Espinoza-Cortez argues that Booker dictates that his

sentence under the formerly mandatory guideline sentencing scheme

is a presumptively prejudicial structural error.     He acknowledges

     *
       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this opinion should not be published and is not precedent except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. 04-40794
                                -2-

that the argument is foreclosed by this court’s case law, but he

raises it to preserve it for further review.

     Because Espinoza-Cortez did not challenge his sentence in

the district court, we review the sentence for plain error.

Under the plain error standard, 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. Mares, 402 F.3d

511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005)(No. 04-9517).   If these factors are established, the

decision to correct the forfeited error is within our discretion,

which we will not exercise unless the error seriously affects the

fairness, integrity, or public reputation of judicial

proceedings.   Id.

     Espinoza-Cortez’s sentence was enhanced based on a prior

conviction for burglary of a habitation; however, Booker does not

apply to such enhancements.   Booker, 125 S. Ct. at 756.   Although

the imposition of a sentence under mandatory sentencing

guidelines constitutes plain error under Booker,** we agree with

Espinoza-Cortez’s concession that he cannot establish that his

sentence at the mid-range of the guidelines affects his

substantial rights.   See United States v. Bringier, 405 F.3d 310,

317-18 & n.4 (5th Cir. 2005), petition for cert. filed (Jul. 26,

2005)(No. 05-5535).


     **
       See United States v. Valenzuela-Quevedo, 407 F.3d 728,
733 (5th Cir. 2005), petition for cert. filed (Jul. 25, 2005)(No.
05-5556).
                           No. 04-40794
                                -3-

     Accordingly, we conclude 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 his

conviction and sentence.

     AFFIRMED.
