                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 17, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41658
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LUIS ANGEL HERRERA-TORRES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-391-ALL
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Luis Angel Herrera-Torres appeals the sentence imposed

following his guilty-plea conviction for aiding and abetting the

possession of more than 50 kilograms (approximately 74.09

kilograms) of marijuana with intent to distribute in violation of

21 U.S.C. §§ 841, 846 and 18 U.S.C. § 2.   Herrera-Torres argues

that the district court erred in imposing his sentence under the

then mandatory United States Sentencing Guidelines that were held

unconstitutional in United States v. Booker, 125 S. Ct. 738

(2005).

     *
       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this opinion should not be published and is not precedent except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. 04-41658
                                -2-

     We review for plain error.   See United States v. Mares, 402

F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517).   The district court’s application of the

guidelines in their mandatory form constituted error that is

plain.   See United States v. Valenzuela-Quevedo, 407 F.3d 728,

733 (5th Cir. 2005), petition for cert. filed (July 25, 2005)

(No. 05-5556).   Herrera-Torres concedes that he cannot meet the

third prong of plain-error analysis as a review of the record

gives no indication that the judge would have sentenced him any

differently had he known the guidelines were only advisory.      See

Mares, 402 F.3d at 522.   Therefore, Herrera-Torres has not shown

that the district court’s imposition of his sentence constituted

reversible plain error.   See id. at 520-22.

     This court has rejected the argument that a Booker error or

the application of the then mandatory guidelines is a structural

error or is presumptively prejudicial.    Mares, 402 F.3d at 520;

see also United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th

Cir. 2005)(same), petition for cert. filed (July 11, 2005) (No.

05-5297).   Therefore, Herrera-Torres’s argument that the plain

error standard does not apply is foreclosed.

     AFFIRMED.
