                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 August 10, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40772
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

DOUGLAS M. CRUZ,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 1:04-CR-101-ALL
                         --------------------

         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 judgment of conviction and sentence

of Douglas M. Cruz.     United States v. Cruz, No. 04-40772 (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Cir. Dec. 17, 2004) (unpublished).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).     See De La Cruz-Gonzalez v. United

States, 125 S. Ct. 1995 (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this opinion should not be published and is not precedent except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. 04-40772
                                 -2-

     Cruz argues that he is entitled to resentencing because the

district court sentenced him under a mandatory application of the

United States Sentencing Guidelines prohibited by Booker.

However, he identifies “no evidence in the record suggesting that

the district court would have imposed a lesser sentence under an

advisory guidelines system.”   United States v. Taylor, 409 F.3d

675, 677 (5th Cir. 2005).

     Cruz concedes that he cannot make the necessary showing of

plain error that is required by our precedent.   Furthermore, he

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. Mares, 402 F.3d

511, 520-22 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517); see also United States v. Malveaux, 411 F.3d

558, 561 n.9 (5th Cir.   2005), petition for cert. filed (July 11,

2005) (No. 05-5297).   He desires to preserve this argument for

further review.

     Because nothing in the Supreme Court’s Booker decision

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

therefore reinstate our judgment affirming Cruz’s conviction and

sentence.

     AFFIRMED.
