                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 21, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40587
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ELIAS CHAPA-GUTIERREZ,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:03-CR-335-1
                       --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Elias Chapa-Gutierrez (Chapa) appeals the 33-month sentence

imposed following his jury trial conviction for transporting

illegal aliens within the United States.    Chapa argues that, in

light of United States v. Booker, 543 U.S. 220 (2005), his

sentence must be vacated because it was enhanced on the basis of

judicial factual findings.    Specifically, he challenges the

increase in his base offense level pursuant to U.S.S.G.

§ 2L1.1(b)(5).


     *
       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this opinion should not be published and is not precedent except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. 04-40587
                                  -2-

     Chapa concedes that he did not raise a constitutional

challenge to his sentence before the district court and that

review is for plain error.    See United States v. Mares, 402 F.3d

511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).     The

district court did commit Booker error because Chapa’s sentence

was enhanced based on facts not alleged in the indictment or

proved to a jury beyond a reasonable doubt.     See Booker, 543 U.S.

at 244.   However, Chapa fails to meet his burden of showing that

the error affected his substantial rights.    See Mares, 402 F.3d

at 521.   Chapa has not identified anything in the record

indicating that the district court would have imposed a lower

sentence under an advisory guidelines scheme.    See id.

     AFFIRMED.
