                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 4, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-20231
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

SHIRLEY THIBODEAUX,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 4:02-CR-541-1
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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

PER CURIAM:*

     This court affirmed the sentence of Shirley Thibodeaux.

United States v. Thibodeaux, 115 Fed. Appx. 708 (5th Cir. Dec.

17, 2004)(unpublished).     The Supreme Court vacated and remanded

for further consideration in light of United States v. Booker,

125 S. Ct. 738 (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this opinion should not be published and is not precedent except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. 04-20231
                                 -2-

     Thibodeaux argues that the district court’s application of

sentencing guidelines adjustments based upon the amount of loss

and victims involved and for means of identification used

violated the Sixth Amendment.    Thibodeaux concedes that her

argument is raised for the first time on appeal 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).

     As Thibodeaux admits, the district court made no statements

indicating that it would have imposed a lower sentence under an

advisory guidelines regime.    Accordingly, although the district

court’s adjustments to Thibodeaux’s sentence constitute error

that is plain, i.e., obvious, Thibodeaux cannot demonstrate that

the error affected her substantial rights.    See id. at 521-22.

     Thibodeaux correctly acknowledges that this court has

rejected the argument that a Booker error is a structural error

or that such error is presumed to be prejudicial.    See United

States v. Martinez-Lugo, 411 F.3d 597, 611 (5th Cir. 2005).      She

likewise concedes that our precedent forecloses her contention

that application of Booker’s remedial opinion to her violates the

Ex Post Facto Clause.   See United States v. Scroggins, 411 F.3d

572, 577 (5th Cir. 2005).    She raises these arguments to preserve

them for further review.    Thibodeaux’s reliance on the plain

error analysis set forth in United States v. Dazey, 403 F.3d 1147

(10th Cir. 2005), is unavailing in light of Mares.
                          No. 04-20231
                               -3-

      Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we

reinstate our judgment affirming Thibodeaux’s conviction and

sentence.
