                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                              December 12, 2005
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                             No. 04-50146



UNITED STATES OF AMERICA

                  Plaintiff - Appellee

     v.

SILVESTRE CUELLAR

                  Defendant - Appellant


             Appeal from the United States District Court
                   for the Western District of Texas
                              (03-CR-1087)


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before HIGGINBOTHAM and DAVIS, Circuit Judges.*

PER CURIAM:**

     In our previous opinion in this case, we affirmed Defendant-

Appellant’s conviction and sentence. See United States v. Cuellar,

No. 04-50146, 105 Fed. Appx. 617 (5th Cir. 2004) (per curiam)

(unpublished).     Following our judgment, Cuellar filed a petition


     *
       This appeal is being decided by a quorum due to the
retirement of Judge Pickering. 28 U.S.C. § 46(d).
     **
      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this opinion should not be published and is not precedent except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-
for certiorari.      The Supreme Court granted Cuellar’s petition for

certiorari, vacated our judgment, and remanded the case to this

court for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005).             We now reconsider the matter in

light of Booker and decide to reinstate our previous judgment

affirming Cuellar’s conviction and sentence.

     Cuellar raised a Booker-related challenge to his sentence for

the first time on direct appeal.             Because Cuellar never raised a

Booker objection in trial court, however, the claim would fail

under the plain-error test discussed in United States v. Mares, 402

F.3d 511, 520-22 (5th Cir. 2005).             The district court sentenced

Cuellar   at   the   bottom   of     the   guideline   range,    but   gave    no

indication     it   would   have    imposed    a   lesser   sentence   had    the

guidelines been advisory.          See United States v. Bringier, 405 F.3d

310 (5th Cir. 2005).

     For the reasons stated above, our prior disposition remains in

effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Cuellar’s

conviction and sentence.




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