                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 1, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-41256
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TIMOTHY JEROME LUKE, also known as Skip, also known as Roy
Evans, also known as Steve Edward Benson, also known as
Phillip Brown, also known as Happy Luke, also known as
Walter Mitchell, also known as Robert Bowers, also known as
Sean Campbell, also known as Miami,

                                    Defendant-Appellee.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 2:03-CR-282-1
                        --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Timothy Jerome Luke was convicted by a jury of conspiracy to

make, utter, and possess counterfeit securities.   The substance

of the charged offense was that the conspirators would obtain

fraudulent checks and false identification documents for the

purpose of passing the fraudulent checks and receiving the

proceeds.   Luke’s total offense level of 26 combined with a


     *
       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this opinion should not be published and is not precedent except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. 04-41256
                                -2-

criminal history category of VI resulted in a guideline range of

60 months of imprisonment due to the statutory maximum for the

offense under 18 U.S.C. § 371.   Luke objected to increases in his

offense level as being without a factual basis.   The district

court overruled the objections and sentenced Luke to 60 months of

imprisonment and to a three-year term of supervised release.

     Luke argues that the evidence was not sufficient to support

his conviction for conspiracy to make, utter, and possess

counterfeit securities.   The court views the evidence, in the

light most favorable to the verdict, to determine if a rational

trier of fact could have found that the evidence established the

essential elements of the offense beyond a reasonable doubt.

United States v. Romero-Cruz, 201 F.3d 374, 378 (5th Cir. 2000).

     “In a prosecution under [18 U.S.C.] § 513(a), the government

must prove that the defendants: (1) made, uttered, or possessed

(2) a counterfeit security (3) of an organization (4) with intent

to deceive another person, organization, or government.”     United

States v. Chappell, 6 F.3d 1095, 1098 (5th Cir. 1993).     Under 18

U.S.C. § 371, the Government “must prove that (1) two or more

persons conspired to pursue an unlawful objective; (2) the

defendant knew of the unlawful objective and voluntarily agreed

to join the conspiracy with the intent to further the objective;

and (3) one or more of the members of the conspiracy committed an

overt act in furtherance of the objective of the conspiracy.”

United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000).
                             No. 04-41256
                                  -3-

     Luke does not argue that there was no conspiracy.      Luke does

not argue that none of the coconspirators committed an overt act

in furtherance of the conspiracy.    Luke argues that there is no

evidence that he possessed counterfeit securities and that there

is no evidence that he knew of the conspiracy or voluntarily

joined it.   Christopher Paul Smith, an admitted member of the

conspiracy to cash fraudulent checks, testified that Luke handed

envelopes containing fraudulent checks and identification cards

to him, Smith, and another member of the conspiracy, Abel Garcia,

while in Smith’s presence.    Smith’s testimony shows unequivocally

that Luke was part of the conspiracy.       Luke gave Smith $2500 to

purchase a cashier’s check from Frost bank in Austin, Texas.

Counterfeit checks were made from this $2500 cashier’s check, and

five of them were cashed by Luke, Smith, and Garcia, with Luke

keeping most of the money.    On cross-examination, Smith testified

that he drove Luke and Garcia to cash counterfeit checks, that

Luke and Garcia took his picture for fake identification, and

that he knowingly conspired with Luke and Garcia to pass

fraudulent checks.   This evidence is sufficient to support Luke’s

conviction for conspiracy.

     Luke argues for the first time on appeal that his sentence

was imposed legally in light of the rule in United States v.

Booker, 125 S. Ct. 738 (2005).    Our review is for plain error.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33

(5th Cir. 2005), cert. denied, ___ S. Ct. ___ (Oct. 3, 2005) (No.
                            No. 04-41256
                                 -4-

05-5556); United States v. Mares, 402 F.3d 511, 520 (5th Cir.

2005), cert. denied, ___ S. Ct. ___ (Oct. 3, 2005) (No. 04-9517).

     After Booker, “[i]t is clear that application of the

Guidelines in their mandatory form constitutes error that is

plain.”    Valenzuela-Quevedo, 407 F.3d at 733.   Luke argues that

the error affected his substantial rights because it was

structural or because prejudice should otherwise be presumed.

These arguments are foreclosed.     See United States v. Malveaux,

411 F.3d 558, 560 n.9 (5th Cir. 2005), cert. denied, ___ S. Ct.

___ (Oct. 3, 2005) (No. 05-5297).

     To satisfy the plain-error test in light of Booker, Luke

must demonstrate that his substantial rights were affected by the

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

2005).    Luke has not made a particularized showing of an effect

on his substantial rights or that the record indicates in any way

that the district court would have imposed a lower sentence under

an advisory sentencing scheme.    Accordingly, there is no basis

for concluding that the district court would have imposed a lower

sentence under an advisory sentencing regime.     See Mares, 402

F.3d at 522.

     AFFIRMED.
