                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                    May 18, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 03-10137
              Summary Calendar
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

         BOOKER T. MUHAMMAD,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
      for the Northern District of Texas
             m 4:02-CR-83-1-Y
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before SMITH and WIENER,                                   or obvious error in sentencing Muhammad
  Circuit Judges.*                                         based on facts not found by a jury or admitted
                                                           by the defendant, and in doing so under a
PER CURIAM:**                                              mandatory guidelines system.” The govern-
                                                           ment correctly observes, however, that even
   This court afirmed defendant Booker                     without the challenged drug quantity, the
Muhammad’s conviction and sentence. United                 district court, on resentencing, “would be pre-
States v. Muhammad, 91 Fed. Appx. 972 (5th                 sented with []an advisory guideline range
Cir. 2004) (per curiam). The Supreme Court                 containing the same sentence it already im-
vacated and remanded for further consider-                 posed, and could thus impose that same sen-
ation in light of United States v. Booker, 125             tence.” It follows that Muhammad cannot
S. Ct. 738 (2005). Muhammad v. United                      show that he would receive a lesser sentence
States, 125 S. Ct. 1006 (2005).                            on remand.

   Muhammad concedes that no Sixth Amend-                     Muhammad urges that, nonetheless, the
ment objection was raised in the district court,           error is structural. As this court has held,
so we should review for plain error. See                   however, “we reject [the] argument toat Book-
United States v. Mares, 402 F.3d 511, 520                  er error is structural and insusceptible to harm-
(5th Cir. 2005), petition for cert. filed (Mar.            less error analysis, and that Booker error
31, 2005) (No. 04-9517). “An appellate court               should be presumed prejudicial, as both claims
may not correct an error the defendant failed              are in conflict with Mares.” United States v.
to raise in the district court unless there is ‘(1)        Malveaux, 2005 U.S. App. LEXIS 5960, at *4
error, (2) that is plain, and (3) that affects             n.9 (5th Cir. Apr. 11, 2005) (per curiam)
substantial rights.’” Id. (quoting United States           (unpublished). Muhammad’s substantial rights
v. Cotton, 535 U.S. 625, 631 (2002)).                      have not been affected.

   In its supplemental letter brief addressing                The judgments of conviction and sentence
Booker, the government “concedes that in light             are AFFIRMED.
of Booker, the district court committed a clear


   *
     Judge Duhé was a member of this panel when
the opinion issued on April 5, 2004. Although he
remains a Senior Circuit Judge on this court, he is
currently not hearing cases. Accordingly, this
matter is decided by a quorum. See 28 U.S.C.
§ 46(d).
   **
     Pursuant to 5TH CIR. R. 47.5, the court has de-
termined 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.

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