                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                   January 12, 2006
                         FOR THE FIFTH CIRCUIT
                         _____________________                 Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-40245
                         _____________________

UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                  versus

IVAN RICARDO CIFUENTES-CAYCEDO,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 2:03-CR-252-1
_________________________________________________________________

                            ON REMAND FROM
                THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:1

     This      court   affirmed   Ivan     Ricardo    Cifuentes-Caycedo’s

conviction and sentence.     United States v. Cifuentes-Caycedo, 111

Fed. Appx. 772 (5th Cir. 2004).          The Supreme Court vacated and

remanded for further consideration in the light of United States v.

Booker, 125 S.Ct. 738 (2005).     Cifuentes-Caycedo v. United States,

125 S.Ct. 1679 (2005).       We requested and received supplemental

letter briefs addressing the impact of Booker.



     1
      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this opinion should not be published and is not precedent except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.
      In his supplemental brief, Cifuentes-Caycedo argues that his

sentence was enhanced on the basis of facts not found by the jury,

in violation of the Sixth Amendment, and that there was error under

Booker    because    he   was      sentenced   under    mandatory      sentencing

guidelines.     Because he did not object on these grounds in the

district court, we review his sentence only for plain error.                 See

United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,

126 S.Ct. 43 (2005).2

      Under plain error review, Cifuentes-Caycedo must show that

there is “(1) error, (2) that is plain, and (3) that affects

substantial rights.”         United States v. Cotton, 535 U.S. 625, 631

(2002). If he makes such a showing, we may exercise our discretion

to   correct   the   error    if    it   “seriously    affects   the   fairness,

integrity, or public reputation of judicial proceedings.” Id. The

first two prongs of the plain error test are satisfied here:

Cifuentes-Caycedo’s sentence was enhanced based on facts found by

the judge but not by the jury under a mandatory Guidelines regime.

See Mares, 402 F.3d 519-20.

      Under the third prong of the plain error test, Cifuentes-

Caycedo must show that the error affected his substantial rights.

      2
      To preserve the issue for further review in the Supreme
Court, Cifuentes-Caycedo contends that the standard of review
should be de novo because he objected to the factual sufficiency of
the evidence supporting, as well as the district court’s
application of, the extra-verdict sentencing enhancements.       He
recognizes that this argument is foreclosed by this court’s
decisions in United States v. Pennell, 409 F.3d 240 (5th Cir.
2005), and United States v. Akpan, 407 F.3d 360 (5th Cir. 2005).

                                          2
He argues that the Booker errors affected his substantial rights

because he was sentenced on the basis of a Guidelines range that

greatly   exceeded   the   Guidelines     range   supported       by   the   jury

findings, in violation of his due process and Sixth Amendment

rights.    He contends that Booker’s remedial holding (striking the

statutory provisions making the Sentencing Guidelines mandatory)

cannot, consistently with due process, be applied retroactively

against him, because to do so would deprive him of his Sixth

Amendment right to be sentenced on the basis of facts proven to a

jury beyond a reasonable doubt.          This contention is foreclosed by

Booker.    See United States v. Scroggins, 411 F.3d 572, 576 (5th

Cir. 2005) (rejecting a similar argument and holding that both the

Sixth Amendment holding of Booker and its remedial interpretation

of the Sentencing Act apply to all cases on direct review).

     Cifuentes-Caycedo’s reliance on the plain error analysis set

forth in United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir.

2005) (holding that defendant can show Booker Sixth Amendment error

affected his substantial rights by showing a reasonable probability

that a jury applying a reasonable doubt standard would not have

found the same facts that a judge found by a preponderance of the

evidence), is unavailing in the light of Mares.            Cifuentes-Caycedo

has not met his burden, under Mares, of “demonstrating that the

result    would   have   likely   been   different   had    the    judge     been




                                     3
sentencing under the Booker advisory regime rather than the pre-

Booker mandatory regime.”   Mares, 402 F.3d at 522.3

     For the foregoing reasons, 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 Cifuentes-Caycedo’s conviction and sentence.

                                              JUDGMENT REINSTATED.




     3
      To preserve the issues for further review in the Supreme
Court, Cifuentes-Caycedo argues that Booker error is structural or
at least presumptively prejudicial. These arguments are foreclosed
by our precedent. See United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005); United
States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert. denied,
126 S.Ct. 194 (2005).

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