                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      October 17, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 03-41744
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                       ROGELIO G. PEREZ-CAVASOS,

                                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:03-CR-1229-ALL
                         --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Rogelio G. Perez-Cavasos (“Perez”) appeals the concurrent 51-

month sentences imposed following his jury-trial convictions of

importing more than 50 kilograms of marijuana and possessing with

intent to distribute more than 50 kilograms of marijuana.             Perez’s

sentence was based on the district court’s sentencing determination

that Perez was responsible for 88.6 kilograms of marijuana.



     Perez argues that his sentence was imposed in violation of



     *
            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opinion should not be published and is not precedent except under the limited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.
United States v. Booker, 125 S. Ct. 738 (2005), in that the

district court enhanced his sentence based on a determination of

drug quantity not made by a jury or proven beyond a reasonable

doubt. He also contends that the district court erred under Booker

in sentencing him pursuant to a mandatory application of the

federal Sentencing Guidelines.

     As Perez concedes, this court’s review of his Booker-based

claims is for plain error because he did not object to his sentence

in the district court.     See United States v. Mares, 402 F.3d 511,

520-21   (5th   Cir.   2005),   petition   for   cert.    filed   (Mar.   31,

2005)(No. 04-9517).     In order to establish plain error, Perez must

establish 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, 732-34 (1993).         If these criteria are met,

this court has the authority correct the error, but is not required

to do so.   Id. at 736.

     Perez contends that he is entitled to retroactive application

of the Sixth Amendment holding of Booker, but he argues that the

Due Process Clause of the Fifth Amendment precludes the application

of the remedial holding of Booker to his case.           Perez’s contention

that the remedial holding of Booker cannot be applied in his case

runs directly counter to Booker’s determination that both the Sixth

Amendment holding and the remedial holding must be applied to all

cases on direct review, see Booker, 125 S. Ct. at 769, and is

therefore foreclosed.

                                    2
     Perez seeks to preserve for further review the argument that

Booker error is structural or at least presumptively prejudicial.

This court, however, has rejected arguments that Booker error is

structural and that Booker error should be presumed prejudicial, as

such claims conflict with Mares.          See United States v. Malveaux,

411 F.3d 558, 561 n.9 (5th Cir.           2005), petition for cert. filed

(July 11, 2005) (No. 05-5297).

     Perez   also    contends   that,     because     he   was   a   first-time

offender, it is at least reasonably probable that the district

court would have imposed a lower sentence had it not believed it

was bound by mandatory sentencing guidelines.                To show that his

substantial rights were affected, Perez must show that the district

court’s   error     “affected   the   outcome    of    the    district    court

proceedings” such that there is a probability of error “sufficient

to undermine confidence in the outcome.”            Mares, 402 F.3d at 521

(internal quotation marks and citations omitted).                    Because

“there is no indication in the record from the sentencing judge’s

remarks or otherwise that gives us any clue as to whether [he]

would have reached a different conclusion,” Perez cannot establish

plain error.      See Mares, 402 F.3d at 522.          Accordingly, Perez’s

sentence is AFFIRMED.




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