                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 10, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-10843
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUANITA GONZALEZ ROCHA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 4:03-CR-335-ALL-A
                      --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Juanita Gonzalez Rocha (Rocha) appeals her guilty plea

conviction and sentence for possession of stolen mail in

violation of 18 U.S.C. § 1708.

     For the first time on appeal, Rocha contends that the

district court erred when it upwardly departed based on its

finding that she was engaged in narcotics trafficking while

awaiting sentencing because (1) the finding was neither admitted

by her nor made by a jury beyond a reasonable doubt, and (2) the


     *
       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this opinion should not be published and is not precedent except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. 04-10843
                                 -2-

finding was inconsistent with the district court’s earlier order

allowing her to remain out on release pending sentencing.

Because Rocha did not object to the upward departure in the

district court, this court’s review is for plain error.     See

United States v. Mares, ___ F.3d ___, 2005 WL 503715, *7 (5th

Cir. March 4, 2005).

       After Rocha’s appellate brief was filed but before the

Government submitted its brief, the Supreme Court issued its

decision in United States v. Booker, 125 S. Ct. 738 (2005).       In

Booker, the Supreme Court held that “[a]ny fact (other than a

prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.”       Id. at

756.    Further, the Court excised 18 U.S.C. § 3553(b)(1) of the

Sentencing Reform Act, rendering the Federal Sentencing

Guidelines effectively advisory.    Id. at 764-65.

       Even if Rocha could establish Booker error, she has not

demonstrated that this error affected her substantial rights.

Rocha has failed to point to any evidence in the record

indicating that the same sentence would not have been imposed had

the district court known that the Guidelines were advisory.       The

record itself gives no indication that the district court would

have reached a different result under an advisory guidelines

scheme.    The district court, in its discretion, upwardly departed
                           No. 04-10843
                                -3-

from the 10 to 16 month guideline sentencing range and sentenced

Rocha to 28 months of imprisonment based on its determination

that the guideline sentencing range was not adequate to take into

account Rocha’s criminal conduct and the likelihood of

recidivism.   Given the lack of evidence indicating that the

district court would have reached a different conclusion, Rocha

has not demonstrated that her substantial rights were affected,

and, thus, she has failed to establish plain error.   See Mares,

2005 WL 503715 at **8-9.

     Further, the district court’s finding at sentencing that

Rocha was engaged in narcotics trafficking was not inconsistent

with its earlier finding that Rocha violated a condition of

release by failing to report the incident to pretrial services.

Thus, Rocha has failed to establish plain error.   See id. at *8.

     Accordingly, the district court’s judgment is AFFIRMED.
