                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                December 12, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-10396
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

SHERRI ANN KAETHER,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                       USDC No. 4:03-CR-251-I-A
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, HIGGINBOTHAM, and WEINER, Circuit Judges.

PER CURIAM:*

     We previously affirmed the district court’s upward departure

in sentencing Sherri Ann Kaether for unlawful possession of

stolen mail.     While petition for certiorari with the Supreme

Court was pending in this case, the Supreme Court decided United

States v. Booker.1    It subsequently granted Kaether’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this opinion should not be published and is not precedent except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.
     1
      125 S.Ct. 738 (2005).
                          No. 04-10396
                               -2-

for certiorari and vacated and remanded for reconsideration in

light of Booker.

     As the Government concedes, there was Booker error here

because the district court enhanced Kaether’s sentence based on

facts, other than a prior conviction, neither alleged in the

indictment and proven to a jury nor admitted by Kaether.

However, because Kaether concedes that she did not preserve this

error, she must show that the error was plain.2    And she concedes

that she cannot meet this burden because she cannot show that the

district court would have sentenced her less harshly had it known

the Sentencing Guidelines were not mandatory.3    We decline her

invitation to revisit our precedent rejecting her arguments that

plain error review should not apply4 and that Booker’s remedial

holding cannot be applied to her retroactively.5

     Kaether’s sentence is AFFIRMED.




     2
      See United States v. Akpan, 407 F.3d 360, 375-76 (5th Cir.
2005).
     3
      See United States v. Mares, 402 F.3d 511, 522 (5th Cir.
2005).
     4
      See id.
     5
      See United States v. Scroggins, 411 F.3d 572, 575-77 (5th
Cir. 2005).
