                                                       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. 03-11291
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAVID HILL,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 3:03-CR-159-G-2
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     David Hill was tried before a jury and convicted of

conspiracy to manufacture and possess with the intent to

distribute in excess of 500 grams or more of a mixture containing

a detectable amount of methamphetamine, in violation of 21 U.S.C.

§ 846.   He argues that the district court erred under United

States v. Booker, 125 S. Ct. 738 (2005), when it sentenced him

based on factual determinations that were not included in the

jury verdict or admitted by Hill.


     *
       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this opinion should not be published and is not precedent except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. 03-11291
                                 -2-

     Hill did not raise this issue in the district court;

therefore, this court’s review is for plain error.     United States

v. Mares, 402 F.3d 511, 513, 520-22 (5th Cir. 2005), petition for

cert. filed (Mar. 31, 2005) (No. 04-9517).    In Hill’s case, as in

Mares, there was clear or obvious Booker error because the

district court imposed a sentence based on judge found facts that

were neither admitted by Hill nor found by a jury in a mandatory

Guidelines system.    See id. at 520-21.

     Hill asserts that he would have received a lesser sentence

without the enhancements.    Hill’s assertion that his sentence

would have been lower absent the extra verdict enhancements fails

to establish that the Booker error affected his substantial

rights.    See United States v. Bringier, 405 F.3d 310, 318 (5th

Cir. 2005), petition for cert. filed (July 26, 2005) (No. 05-

5535).    Furthermore, Hill has not shown, with a probability

sufficient to undermine confidence in the outcome, that if the

judge had sentenced him under an advisory sentencing regime,

rather than a mandatory one, he would have received a lesser

sentence.    He therefore has failed to establish plain error.     See

United States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005).

     To the extent that Hill is arguing that the Booker error

should be presumed prejudicial, this argument is at odds with

Mares, 402 F.3d at 520-22, and is therefore rejected.     See United

States v. Malveaux, 411 F.3d 558, 561 and n.9 (5th Cir. 2005),

petition for cert. filed (July 11, 2005) (No. 05-5297).

     The judgment of the district court is AFFIRMED.
