                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 9, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-51435
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

   ALFREDO RIVERA-BERNAL, also known as Noe Gomez-Robles, also
                  known as Samuel Rivera-Bernal,

                                                 Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-03-CR-1549-PRM
                       --------------------

Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Alfredo Rivera-Bernal (Rivera) appeals the sentence imposed

following his guilty-plea conviction for illegal reentry.        Rivera

argues for the first time on appeal that the district court’s

mandatory application of the Sentencing Guidelines violates United

States v. Booker, 543 U.S. 220 (2005).

     To establish plain error, Rivera must show:          (1) error;

(2) that is plain; (3) that affects his substantial rights; and

(4) that affects the fairness, integrity, or public reputation 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this opinion should not be published and is not precedent except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.
judicial proceedings.         United States v. Mares, 402 F.3d 511, 520

(5th   Cir.),   cert.   denied,      126       S.   Ct.    43   (2005).     Mandatory

application of the Guidelines is error that is plain.                          United

States v. Duarte-Juarez, 441 F.3d 336, 338 (5th Cir.), cert.

denied, 127 S. Ct. 161 (2006).                 However, Rivera has not met his

burden   to   show   “‘with    a    probability           sufficient   to   undermine

confidence in the outcome, that if the judge had sentenced him

under an advisory sentencing regime rather than a mandatory one, he

would have received a lesser sentence.’”                   See id. (quoting United

States v. Infante, 404 F.3d 376, 394-95 (5th Cir. 2005)).                      Rivera

concedes that the record does not establish whether the district

court would have imposed a lower sentence had it known that the

Guidelines were advisory.          Accordingly, Rivera has not shown plain

error, and the judgment of the district court is AFFIRMED.




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