                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 20, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 04-41230
                           Summary Calendar



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

MARTY RAMIREZ

                      Defendant - Appellant

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 6:04-CR-13-ALL
                        --------------------

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

PER CURIAM:*

     Marty Ramirez appeals following his guilty plea to the

offense of felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1).   Ramirez argues that the district court

misapplied the sentencing guidelines when determining his offense

level based on his prior convictions.    He contends that his

previous Texas conviction for burglary of a habitation is not a

crime of violence for purposes of U.S.S.G. §§ 2K2.1(a)(2) and

4B1.2(a).   Because Ramirez did not object to the district court’s


     *
       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this opinion should not be published and is not precedent except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. 04-41230
                                -2-

application of the guidelines, review is for plain error.        See

United States v. Garcia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).

The district court did not plainly err by concluding that

Ramirez’s prior conviction was a crime of violence.     See United

States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996); United

States v. Cruz, 882 F.2d 922, 923 (5th Cir. 1989).

     Ramirez next contends that his sentence is invalid in light

of United States v. Booker, 125 S. Ct. 738 (2005), because the

district court sentenced him under a mandatory application of the

sentencing guidelines.   Because Ramirez did not raise this issue

in the district court, we review it only for plain error.        United

States v. Valenzuela- Quevedo, __F.3d__, No. 03-41754, 2005 WL

941353, *3 (5th Cir. 2005).     To prevail under a plain error

analysis, Ramirez must show, among other things, that the error

prejudiced him by adversely affecting his substantial rights.

Id. at *3-*4.   The record does not suggest that Ramirez’s

sentence would have been any less had the court applied the

sentencing guidelines as advisory rather than mandatory.     See id.

at *4.   Ramirez thus fails to establish prejudice to his

substantial rights.   See id.

     Ramirez further argues that 18 U.S.C. § 922(g)(1) is not

narrowly tailored in light of the interplay of the Second

Amendment and the regulation of interstate commerce under the

Commerce Clause, is overly broad, and unevenly burdens a

fundamental right in violation of equal protection.     He
                           No. 04-41230
                                -3-

acknowledges that his arguments are foreclosed by this court’s

decision in United States v. Darrington, 351 F.3d 632 (5th Cir.

2003), cert. denied, 124 S. Ct. 2429 (2004), but has raised the

issue to preserve it for possible review by the Supreme Court.

     Finally, Ramirez argues that 18 U.S.C. § 922(g)(1) is an

unconstitutional exercise of Congress’s Commerce Clause power

because the regulated activity does not substantially affect

interstate commerce.   He argues that the factual basis for his

plea was insufficient because the evidence established only that

the firearm had traveled across state lines at some point in the

past.   Ramirez raises these arguments solely to preserve them for

possible Supreme Court review.   As he acknowledges, they are

foreclosed by existing Fifth Circuit precedent.   See United

States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

     AFFIRMED.
