                                                         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. 04-40272
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

CRISTOBAL SANCHEZ-PENA,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. 7:03-CR-22-1
                         ---------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     On December 17, 2004, in an unpublished opinion, this court

affirmed the sentence of Cristobal Sanchez-Pena (“Sanchez”).

United States v. Sanchez-Pena, 115 Fed. Appx. 710 (5th Cir.

2004).     The Supreme Court vacated and remanded for further

consideration in light of United States v. Booker, 125 S. Ct. 738

(2005).     Sanchez-Pena v. United States, 125 S. Ct. 1953 (2005).

We requested and received supplemental letter briefs addressing

the impact of Booker.

     *
       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this opinion should not be published and is not precedent except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. 04-40272
                                -2-

     Sanchez contends that the district court illegally sentenced

him pursuant to a mandatory Sentencing Guidelines regime, in

violation of Booker.   He concedes that such argument is raised

for the first time and is reviewable for plain error only.       See

United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).

Sentencing a defendant pursuant to a mandatory guidelines scheme,

standing alone, constitutes “Fanfan” error, and such an error is

“plain.”   See Booker, 125 S. Ct. at 750, 768-69 (addressing

preserved challenge in companion case); United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005).

     To satisfy the third prong of the plain-error test, Sanchez

must show that his “substantial rights” were affected.     See

Valenzuela-Quevedo, 407 F.3d at 732.   “The pertinent question is

whether [the appellant] demonstrated that the sentencing judge

-–sentencing under an advisory scheme rather than a mandatory

one-–would have reached a significantly different result.”

Mares, 402 F.3d at 521.   This question requires us to assess

whether “there is [an] indication in the record from the

sentencing judge’s remarks or otherwise that gives us any clue as

to whether [ ]he would have reached a different conclusion” if

sentencing under an advisory scheme.   Id. at 522.   That the

district court sentenced Sanchez at the bottom of his 33-to-41-

month guideline imprisonment range, standing alone, is no

indication that the district court would have reached a different
                           No. 04-40272
                                -3-

result under an advisory guidelines regime.   United States v.

Bringier, 405 F.3d 310, 317-18 n.4 (5th Cir. 2005).   To the

extent that Sanchez contends that application of the mandatory

Guidelines regime is a “structural” error that is not susceptible

to a plain-error analysis, or that he alternatively contends that

plain-error prejudice should be presumed, this court recently

rejected such arguments.   United States v. Martinez-Lugo, 411

F.3d 597, 611 (5th Cir. 2005).

     AFFIRMED.
