                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-30418
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ADDISON WARREN PAYNE, III,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 2:03-CR-309-1
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Addison Warren Payne, III, challenges his sentence

for bank robbery under 18 U.S.C. §§ 2113(a) and (d) and for

brandishing a firearm under 18 U.S.C. § 924(c)(1).     Citing United

States v. Booker, 543 U.S. 220 (2005), Payne asserts that the

district court erred by increasing his sentence based upon facts

that were neither proven to a jury nor admitted by Payne.

     Because he did not raise a Sixth Amendment objection below,

we review this issue for plain error.   See United States v.


     *
       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this opinion should not be published and is not precedent except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. 05-30418
                                  -2-

Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).    Payne must demonstrate (1) an error, (2) that is plain,

and (3) that affects his substantial rights.      Id.   If these

conditions are satisfied, we may exercise our discretion to

correct the error if it “seriously affects the fairness,

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

     To the extent that Payne argues that any error should be

considered presumptively prejudicial, this argument is foreclosed

by circuit precedent.     United States v. Malveaux, 411 F.3d 558,

561 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194 (2005).

     Payne correctly asserts that the district court increased

his sentence for both the bank robbery and firearm convictions

based upon factual findings made by the judge.     Because the judge

sentenced Payne under the belief that the Sentencing Guidelines

were mandatory, we find that the court committed error that was

plain.    See Mares, 402 F.3d at 520-21.    However, Payne cannot

demonstrate that the error affected his substantial rights under

this court’s precedent.     See id.

     Accordingly, the judgment of the district court is AFFIRMED.
