                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 4, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40686
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

CARLOS PEREZ-TOSTADO,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 1:03-CR-894-ALL
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the conviction and sentence of Carlos

Perez-Tostado.     United States v. Perez-Tostado, No. 04-40686 (5th

Cir. Dec. 17, 2004) (unpublished).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

remanded for further consideration in light of United States v.

Booker, 543 U.S. 220 (2005).     See de la Cruz-Gonzalez v. United

States, 125 S. Ct. 1995 (2005).     This court requested and




     *
       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this opinion should not be published and is not precedent except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. 04-40686
                                 -2-

received supplemental letter briefs addressing the impact of

Booker.

     In his supplemental letter brief, Perez-Tostado contends

that the district court committed reversible plain error when it

sentenced him pursuant to the mandatory United States Sentencing

Guidelines held unconstitutional in Booker.    He also argues that

his Booker claim is not precluded by the terms of the appellate-

waiver provision in his plea agreement.    Because Perez-Tostado

cannot prevail on his Booker claim, a ruling on the

enforceability of his appeal waiver is pretermitted.

     The district court erred when it sentenced Perez-Tostado

pursuant to the mandatory guidelines system held unconstitutional

in Booker.    See United States v. Valenzuela-Quevedo, 407 F.3d

728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).    By

challenging his sentence under Blakely v. Washington, 542 U.S.

296 (2004), on direct appeal, Perez-Tostado has sufficiently

preserved Fanfan error for review on remand from the Supreme

Court.    See United States v. Cruz, 418 F.3d 481, 484 (5th Cir.),

cert. denied, 126 S. Ct. 770 (2005).   A Fanfan error is neither

structural nor presumptively prejudicial and, instead, is subject

to the plain error analysis set forth in United States v. Mares,

402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).       See

United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.),

cert. denied, 126 S. Ct. 464 (2005); United States v. Malveaux,
                            No. 04-40686
                                 -3-

411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194

(2005).

     Perez-Tostado has failed to point to any statements in the

record indicating that the same sentence would not have been

imposed had the district court known that the Guidelines were

advisory.   The record itself gives no indication that the

district court would have reached a different result under an

advisory guidelines system.    Further, the fact that Perez-Tostado

was sentenced at the lowest end of the guideline range does not

demonstrate that the district court would have reached a

different conclusion under an advisory sentencing scheme.       See

United States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir.),

cert. denied, 126 S. Ct. 264 (2005).    Given the lack of any

indication in the record that the district court would have

reached a different conclusion, Perez-Tostado has not

demonstrated that his substantial rights were affected, and,

thus, he has failed to establish plain error.     See Mares,

402 F.3d at 520-22.

     In his original appeal to this court, Perez-Tostado argued

that the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b) were unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).    As this court previously held,

this issue is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).     See also United States v. Garza-Lopez,

410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298
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(2005).   Booker did not overrule Almendarez-Torres.   See Booker,

543 U.S. at 244.

     Booker does not require this court to change the prior

affirmance in Perez-Tostado’s case.   Accordingly, we REINSTATE

our judgment affirming Perez-Tostado’s conviction and sentence.

     AFFIRMED.
