                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 30, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                              No. 04-40541
                          Conference Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

GABRIEL MARTINEZ - ESPARZA

                     Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 7:03-CR-968-1
                      --------------------

     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 conviction and sentence of Gabriel

Martinez-Esparza.   United States v. Martinez-Esparza, 117 Fed.

Appx. 984, 984-85 (5th Cir. 2004) (unpublished).    The Supreme

Court has vacated and remanded for further consideration in light

of United States v. Booker, 125 S. Ct. 738 (2005).     We now

REINSTATE our earlier opinion and judgment affirming the district

court’s final judgment.    However, we substitute the following


     *
       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this opinion should not be published and is not precedent except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. 04-40541
                                 -2-
revised analysis for the portion of our opinion addressing

Martinez-Esparza’s challenge to his sentence based on Blakely v.

Washington, 542 U.S. 296 (2004); Ring v. Arizona, 536 U.S. 584

(2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

     In his original brief, Martinez-Esparza argued that his

sentence was unconstitutional because the district court

sentenced him based on facts that were not charged in the

indictment, admitted by him, or proven to a jury beyond a

reasonable doubt.   In a supplemental brief, Martinez-Esparza

reiterates the arguments in light of Booker.      He also argues that

the district court erred by sentencing him under the mandatory

Sentencing Guidelines scheme held unconstitutional in Booker.

     As Martinez-Esparza raises his arguments for the first time

on appeal, the district court’s actions are reviewed for plain

error only.   See United States v. Mares, 402 F.3d 511, 520-21

(5th Cir. 2005), petition for cert. filed (U.S. Mar. 31, 2005)

(No. 04-9517); United States v. Martinez-Lugo, 411 F.3d 597, 600

(5th Cir. 2005).    Martinez-Esparza has satisfied the first two

prongs of the plain error analysis by showing that the district

court committed error that was plain.      See Mares, 402 F.3d at

520-21; Martinez-Lugo, 411 F.3d at 600.     As Martinez-Esparza

acknowledges, however, he has not satisfied the third prong of

the plain error analysis by showing that the error affected his

substantial rights.    See Mares, 402 F.3d at 521-22;

Martinez-Lugo, 411 F.3d at 600-01; United States v. Bringier, 405
                           No. 04-40541
                                -3-
F.3d 310, 318 & n.4 (5th Cir. 2005), petition for cert. filed

(July 26, 2005) (No. 05-5535).

     Martinez-Esparza correctly acknowledges that this court has

rejected the argument that a Booker error is a structural error

or that such error is presumed to be prejudicial.    United States

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

cert. filed (July 11, 2005) (No. 05-5297); Martinez-Lugo, 411

F.3d at 601.   He likewise concedes that our precedent forecloses

his contention that application of Booker’s remedial opinion to

him violates the Ex Post Facto Clause.    See United States v.

Scroggins, 411 F.3d 572, 577 (5th Cir. 2005).   He raises these

arguments solely to preserve them for further review.

     Nothing in the Supreme Court’s Booker decision requires us

to change our prior affirmance in this case.

     PRIOR JUDGMENT REINSTATED.
