                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 4, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40391
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE LUIS LOPEZ-TOVAR,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 2:03-CR-341-1
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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

PER CURIAM:*

     This court affirmed the sentence of Jose Luis Lopez-Tovar.

United States v. Lopez-Tovar, No. 04-40391 (5th Cir. Dec. 17,

2004) (unpublished).     The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker,

125 S. Ct. 738 (2005).     We 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this opinion should not be published and is not precedent except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. 04-40391
                                -2-

      Lopez argues that, in light of Booker, his sentence is

invalid because the district court applied the Sentencing

Guidelines as if they were mandatory.     Because Lopez did not

raise this issue in the district court, we review it for plain

error only.   United States v. Mares, 402 F.3d 511, 513, 520-22

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.

04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728, 732

(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.

05-5556).

      Lopez is unable to establish plain error with regard to his

Booker claim because he cannot establish that being sentenced

under a mandatory Guidelines scheme affected his substantial

rights.   The record does not indicate that the district court

“would have reached a significantly different result” under a

sentencing scheme in which the Guidelines were advisory only.

See Mares, 402 F.3d at 522; Valenzuela-Quevedo, 407 F.3d at 733-

34.   The court has also rejected Lopez’s argument that a Booker

error is structural and thus no prejudice must be shown.     United

States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),

petition for cert. filed (July 11, 2005) (05-5297).

      Accordingly, Lopez’s conviction and sentence are AFFIRMED.
