                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                       August 23, 2005
                            FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk

                                 No. 03-40246
                               Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JESUS MUNOZ-HERNANDEZ,

                                           Defendant-Appellant.

                          ______________________
              Appeal from the United States District Court
                   for the Southern District of Texas
                        USDC No. L-02-CR-1280-ALL
                          ______________________

Before HIGGINBOTHAM and DEMOSS, Circuit Judges.*

PER CURIAM:**

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

      Jesus Munoz-Hernandez contends that his Sixth Amendment right

to a jury trial was violated when he was sentenced based on facts

not found by a jury, citing United States v. Booker.1              We conclude

that his sentence must be affirmed.



      *
        This appeal is being decided by a quorum due to the passing of Judge
Reynaldo Garza. 28 U.S.C. § 46(d).
      **
         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should not be published and is not precedent except under the limited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).
      Munoz-Hernandez was convicted by a jury for possessing with

intent to      distribute     more     than   five    kilograms     of    cocaine    in

violation      of    21   U.S.C.   §   841(a)(1)     and     (b)(1)(A).      The    PSR

indicated that Munoz-Hernandez was responsible for 33.25 kilograms

of cocaine, fixing his base offense level at thirty-four and

producing      a    Guidelines     imprisonment      range    of   151-188   months.

Consistent with the probation officer’s recommendation that Munoz-

Hernandez be sentenced at the “low end” of the range, the district

court imposed a sentence of 151 months’ imprisonment.                     We affirmed

in an unpublished opinion.2            Following its decision in Booker, the

Court vacated our judgment and remanded for further consideration

in light of Booker.3

      Munoz-Hernandez concedes that he failed to preserve error with

respect to his Booker issue.            Thus, our review is for plain error

only.4     “We find plain error when: (1) there was an error; (2) the

error was clear and obvious; and (3) the error affected the

defendant’s substantial rights.”5 If all three of these conditions

are met, we may exercise our discretion to notice the error if “the



      2
        United States v. Munoz-Hernandez, 94 Fed. Appx. 243 (5th Cir. Apr. 19,
2004) (unpublished).

      3
          Munoz-Hernandez v. United States, 125 S. Ct. 999 (Mar. 1, 2005).

      4
        See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). As part
of this conclusion, we observe that Munoz-Hernandez did not “repeatedly object”
to the district court’s determination of drug quantity on the ground that the
figure had not be proven at trial, nor did he “consistently urge” that the
district court confine its determination to the amount alleged in the indictment.
See United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).

      5
        United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005) (citing
United States v. Olano, 507 U.S. 725, 732-37 (1993)).
error     seriously      affects   the    fairness,    integrity,      or   public

reputation of judicial proceedings.”6

      Munoz-Hernandez satisfies the first two prongs of the plain

error test because the district court committed Sixth Amendment

Booker error and because that error is now plain after Booker.7

With respect to prejudice, Munoz-Hernandez argues that three facts

indicate that the district court would likely have assessed a

different sentence under an advisory regime: (1) his sentence was

placed at the very bottom of the Guidelines range; (2) he was a

first-time offender; and (3) his conviction resulted in deportation

proceedings      being     initiated     against    him.     These     facts   are

insufficient      to   establish,      “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,”   Munoz-Hernandez      would    have   received    a   lesser

sentence.8

      Having reconsidered in light of Booker, we REINSTATE our

decision affirming Munoz-Hernandez’s conviction, and AFFIRM his

sentence.


      6
          United States v. Cotton, 535 U.S. 625, 631 (2002).
      7
          See Infante, 404 F.3d at 394; Mares, 402 F.3d at 520.

      8
        Infante, 404 F.3d at 395; compare United States v. Bringier, 405 F.3d
310, 317 n.4 (5th CIr. 2005) (“[T]he fact that the sentencing judge imposed the
minimum sentence under the Guideline range . . . alone is no indication that the
judge would have reached a different conclusion under an advisory scheme.”), with
United States v. Pennell, 409 F.3d 240, 245-46 (5th Cir. 2005) (sentence placed
at the bottom of the Guidelines range plus a statement by the district court
that, “from many standpoints of fairness and justice,” it would be better to
sentence outside the Guidelines range sufficient to establish prejudice).
