                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 12, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40805
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GUADALUPE NIEVES-ALVAREZ,

                                      Defendant-Appellant.


                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 1:04-CR-103-ALL
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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

PER CURIAM:*

     We affirmed the judgment of conviction and sentence of

Guadalupe Nieves-Alvarez (“Nieves”).     United States v. Nieves-

Alvarez, No. 04-40805 (5th Cir. Dec. 17, 2005)(unpublished).           The

Supreme Court vacated and remanded for further consideration in

light of United States v. Booker, 125 S. Ct. 738 (2005).         See de

la Cruz-Gonzalez v. United States, 125 S. Ct. 1995 (2005).          We



     *
       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this opinion should not be published and is not precedent except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. 04-40805
                                -2-

requested and received supplemental letter briefs addressing the

impact of Booker.

     Nieves argues that his sentence should be vacated because

the district court sentenced him under a mandatory Guidelines

scheme in violation of Booker.    He argues that he should not be

required to show plain error because the district court’s error

was “structural” and should be presumed prejudicial.

     The district court erred by imposing a sentence pursuant to

a mandatory application of the Sentencing Guidelines.    See United

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

petition for cert. filed (July 25, 2005) (No. 05-5556); United

States v. Mares, 402 F.3d 511, 520-21 & n.9. (5th Cir. 2005),

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

However, Nieves must establish that the error was “sufficient to

undermine confidence in the outcome [of the case].”     Valenzuela-

Quevedo, 407 F.3d 728, 733 (5th Cir. 2005) (internal quotation

marks and citations omitted).    Nieves cannot make such a showing

because the record does not establish that the sentencing court

would have imposed a different sentence had it been proceeding

under an advisory Guidelines scheme.   Although the district court

sentenced Nieves to the lowest end of the Guidelines range, it

did so without comment.   In the absence of a showing that his

sentence likely would have been different had the Sentencing

Guidelines been advisory, Nieves cannot establish plain error.

Accordingly, we conclude that nothing in the Supreme Court’s
                           No. 04-40805
                                -3-

Booker decision requires us to change our prior affirmance in

this case.   We therefore reinstate our judgment affirming the

defendant’s conviction and sentence.

     AFFIRMED.
