                                                         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. 04-40747
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

PRESTON JOSEPH ROBINSON,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                     USDC No. 1:03-CR-189-TH-WCR-1
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of Preston Joseph Robinson.

United States v. Robinson, 115 F. App’x 259 (5th Cir. 2004).           The

Supreme Court vacated and remanded for further consideration in

light of United States v. Booker, 543 U.S. 220 (2005).        Robinson

v. United States, 125 S. Ct. 1949 (2005).       This court 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this opinion should not be published and is not precedent except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. 04-40747
                                 -2-

     Robinson argues that the district court erred under Booker

in enhancing his sentence based on facts not admitted by him or

found by a jury and in sentencing him under the mandatory

guideline scheme held unconstitutional in Booker.     Our review is

for plain error due to his failure to raise an appropriate

objection in the district court.    See United States v. Mares, 402

F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

     Under the plain error standard of review, the appellant must

show that (1) there is an error (2) that is clear or obvious and

(3) that affects his substantial rights.     United States v. Olano,

507 U.S. 725, 731-37 (1993).    If these factors are established,

the decision to correct the forfeited error is within this

court’s sound discretion, which will not be exercised unless the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.    Id. at 736.

     The district court’s enhancement of Robinson’s sentence

pursuant to a mandatory guideline scheme based on facts that were

not found by a jury or admitted by him constituted error that was

plain.    See Mares, 402 F.3d at 520-21.   Robinson argues that the

error affected his substantial rights because it was structural

or because prejudice should be presumed.    However, these

arguments are foreclosed.    See United States v. Malveaux, 411

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

(2005).    Because the record does not show that Robinson likely

would have received a more lenient sentence if the district court
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                                  -3-

had acted under an advisory sentencing system, Robinson has not

shown that the district court’s error affected his substantial

rights.   See Mares, 402 F.3d at 521.

     Nothing in the Supreme Court’s Booker decision requires us

to change our prior affirmance in this case.   Accordingly, we

reinstate that affirmance.    The judgment of the district court is

AFFIRMED.
