                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                       August 3, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 04-20192
                              Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

DARRELL BERNARD SMITH,

                                           Defendant-Appellant.

                           --------------------
               Appeal from the United States District Court
                    for the Southern District of Texas
                          USDC No. H-03-CR-292-1
                           --------------------


           ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before HIGGINBOTHAM and DAVIS, Circuit Judges.*

PER CURIAM:**

      Darrell Bernard Smith pled guilty to possessing a firearm

subsequent to a felony conviction, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2).         The PSR recommended a base offense

level of 24 and a four-level enhancement pursuant to U.S.S.G.

§ 2K2.1(b)(5) on the ground that he used the firearm in connection

      *
       Judge Pickering was a member of the original panel but resigned from the
Court on December 8, 2004, and therefore did not participate in this decision.
This matter is being decided by a quorum. 28 U.S.C. § 46(d).
      **
        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should not be published and is not precedent except under the limited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.
with another felony offense.         With a total offense level of 28 and

a criminal history category of VI, the corresponding imprisonment

range was 140-175 months; however, the statutory maximum for the

offense of conviction is 120 months.          Smith objected to the four-

level enhancement, and without that enhancement the range would

have been     100-125     months.    The   district   court      overruled   the

objection and sentenced Smith to 120 months.

      On appeal Smith initially challenged his conviction on the

grounds that 18 U.S.C. § 922(g) is unconstitutional under the

Commerce Clause and that his prosecution under that statute was an

unwarranted intrusion on his Second Amendment rights. We affirmed,

noting that Smith’s arguments were foreclosed by circuit precedent

and that Smith raised them only for further review.              United States

v. Smith, 108 Fed. Appx. 873 (5th Cir. Aug. 18, 2004).             The Supreme

Court     vacated   our   judgment   and   remanded    to   us    for   further

consideration in light of United States v. Booker, 125 S.Ct. 738

(2005).     See Smith v. United States, 125 S.Ct. 1069 (2005).

      Smith now argues that his sentence enhancement runs afoul of

Booker.1     As Smith failed to raise this claim in the district




      1
        We decline to pause in this case to consider whether Smith waived this
issue. See United States v. Garcia-Rodriguez, --- F.3d ----, 2005 WL 1538993,
at *4 n.4 (5th Cir. Jun. 30, 2005) (“Garcia raises this argument for the first
time in a supplemental, 28(j) letter filed after briefing was complete. We have
permitted other litigants to raise Booker challenges in this manner, so we
address Garcia’s claim as if it was raised in his opening brief and review for
plain error.”).

                                       2
court,2 our review is for plain error.             See United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed, No.

04-9517 (U.S. Mar. 31, 2005); see also United States v. Garcia, ---

F.3d ----, 2005 WL 1606898 (5th Cir. Jul. 11, 2005).              In order to

establish plain error, Smith must show: (1) error, (2) that is

clear or obvious, and (3) that affects substantial rights.              Mares,

402 F.3d at 520; United States v. Infante, 404 F.3d 376, 394 (5th

Cir. 2005).    “‘If all three conditions are met an appellate court

may then exercise its discretion to notice a forfeited error but

only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.’”               Mares, 402 F.3d at

520 (quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).

      Smith’s claim fails at the third step of the plain error test

because he has not shown that the error affected his substantial

rights.    There is no indication in the record that the district

court would have imposed a lower sentence if the guidelines had

been advisory.       See Infante, 404 F.3d at 394-95.             He has not

carried his “burden of demonstrating that the result would have

likely been different had the judge been sentencing under the

Booker    advisory   regime    rather       than   the   pre-Booker   mandatory

regime.”    Mares, 402 F.3d at 522.          As Smith has not satisfied the

third prong of the plain error test, he is not entitled to


      2
        That is, unlike in United States v. Akpan, 407 F.3d 360 (5th Cir. 2005)
(finding Booker error preserved), we are not “satisfied that his objections
adequately apprised the district court that [he] was raising a Sixth Amendment
objection.” Id. at 376.

                                        3
resentencing.

     AFFIRMED.




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