                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 17, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41617
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAIME CISNEROS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:02-CR-233-2
                      --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jaime Cisneros appeals his guilty-plea conviction and

sentence for conspiracy to possess with intent to distribute

more than 100 kilograms of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 846.

     Cisneros contends that in light of United States v. Booker,

543 U.S. 220 (2005), the district court violated his Fifth and

Sixth Amendment rights when it enhanced his sentence based on the

district judge’s findings as to the drug-quantity calculation and


     *
       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this opinion should not be published and is not precedent except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. 04-41617
                                  -2-

aggravated-role enhancement because these facts were neither

admitted by him nor found by a jury beyond a reasonable doubt.

Cisneros argues that he preserved Booker error by raising an

objection pursuant to Blakely v. Washington, 542 U.S. 296 (2004),

in a motion to supplement the record filed after sentencing but

prior to the district court’s reinstatement of the criminal

judgment.

     Cisneros did not preserve Booker error by raising a Blakely

objection in a motion filed during the pendency of his 28 U.S.C.

§ 2255 proceedings and one year after his sentence was imposed,

but prior to the district court’s reinstatement of the criminal

judgment to allow for an out-of-time appeal.   Thus, this court’s

review is for plain error.    See United States v. Mares, 402 F.3d

511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

     The district court erred when it sentenced Cisneros pursuant

to the mandatory guidelines system held unconstitutional in

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

733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).    However,

Cisneros has failed to point to any statements 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

system.   In fact, the district court sentenced Cisneros at the

middle of the guidelines range.    Given the lack of any indication
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                                -3-

in the record that the district court would have reached a

different conclusion, Cisneros has not demonstrated that his

substantial rights were affected, and, thus, he has failed to

establish plain error.   See Mares, 402 F.3d at 520-22.

     Cisneros also contends that the district court clearly erred

when it found that he committed the instant offense while on

probation because the relevant conduct attributed to him in the

presentence report took place on dates either prior to or after

the probation period.

     A district court’s calculation of a defendant’s criminal

history category is a finding of fact that this court reviews for

clear error.   United States v. Martinez-Moncivais, 14 F.3d 1030,

1038 (5th Cir. 1994); see also United States v. Villanueva,

408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268

(2005).   “A factual finding is not clearly erroneous as long as

it is plausible in light of the record read as a whole.”     United

States v. Shipley, 963 F.2d 56, 58 (5th Cir. 1992) (internal

quotation marks and citation omitted).

     The district court’s factual finding that Cisneros committed

the instant offense while on probation is plausible in light of

the record as a whole.   Cisneros was on probation during part of

the time period set forth in the count of conviction.     Although

the Government did not present specific evidence of an overt act

within the probation period, there is no indication that Cisneros

withdrew from the conspiracy at any time during this period.
                          No. 04-41617
                               -4-

Therefore, the district court did not clearly err in finding that

Cisneros committed the instant offense while on probation.     See

United States v. Trevino, 131 F.3d 1140, 1141 (5th Cir. 1997).

     Accordingly, the district court’s judgment is AFFIRMED.
