                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                      UNITED STATES COURT OF APPEALS                   August 5, 2005
                               FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 04-20316
                               Summary Calendar


                           UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                     versus

                             JESUS DeLEON-GARCIA,

                                                         Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                            (4:03-CR-422-1)


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE and PRADO Circuit Judges.

PER CURIAM:*

     This     court    affirmed      Jesus    DeLeon-Garcia’s     guilty-plea

conviction for illegally re-entering the United States, after

having been deported and convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2); and his sentence to,

inter alia, 56 months in prison.           United States v. DeLeon-Garcia,

04-20316,     119   Fed.     Appx.   605   (5th   Cir.   23   December     2004)

(unpublished).      The Supreme Court granted DeLeon-Garcia’s petition

     *
       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this opinion should not be published and is not precedent except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.
for writ of certiorari and for leave to proceed in forma pauperis;

vacated our previous judgment; and remanded the case for further

consideration in the light of United States v. Booker, 543 U.S.

___, 125 S. Ct. 738 (2005).          DeLeon-Garcia v. United States, 125 S.

Ct. 1997 (2005).         We requested, and received, supplemental briefs

addressing the impact of Booker.              Having reconsidered our decision

pursuant to the Supreme Court’s instructions, we reinstate our

judgment affirming the conviction and sentence.

      DeLeon-Garcia first raised Booker-error on direct appeal;

therefore, our review is only for plain error.               See United States

v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.

filed,     (U.S.    31   Mar.    2005)   (No.   04-9517).     As    DeLeon-Garcia

concedes, he cannot show “that the error ... affected the outcome

of   the   district      court     proceedings”.      Id.   at   521     (quotation

omitted).     Accordingly, he fails the third prong of plain-error

review.

      DeLeon-Garcia also contends: the district court committed

“structural        error”   when    it   sentenced    him   under    a    mandatory

guidelines system; therefore, prejudice to his substantial rights

should be presumed.          He recognizes, however, that our court has

rejected this contention as inconsistent with Mares, see United

States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), and

raises it only to preserve it for possible further review by the

Supreme Court.

                                          2
    AFFIRMED




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