                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    February 14, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-30559
                        _______________________

                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                             WAYNE N. ROBINS,
                                                     Defendant-Appellant.


            Appeal from the United States District Court
                for the Middle District of Louisiana
                     USDC No. 3:03-CR-101-ALL-C


Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

PER CURIAM:*

           Defendant Wayne Robins challenges his sentence under

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

Because he did not preserve his Booker error and because he cannot

show that his substantial rights were affected, we AFFIRM.

           To preserve Booker error, a defendant need not explicitly

cite Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), or the

Sixth Amendment.     See United States v. Akpan, 407 F.3d 360, 376

(5th Cir. 2005).    However, he must “adequately apprise[] the court

that he was raising a constitutional error.”             United States v.


     *
            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opinion should not be published and is not precedent except under the limited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.
Olis, 429 F.3d 540, 544 (5th Cir. 2005).     The argument must be

couched in terms that the facts used to enhance the sentence were

not proven to a jury beyond a reasonable doubt.       See Akpan, 407

F.3d at 376, 377.

           In the district court, Robins’s objections were not

couched in constitutional terms; he merely asserted that the

district court’s factual findings were not supported beyond a

preponderance of the evidence standard.      Because he failed to

properly alert the court to a constitutional error or adequately

“capture the essence” of Blakely, Booker, and Apprendi, we review

for plain error.

           A defendant prevails under plain error review where he

proves (1) that error occurred, (2) that the error is plain, and

(3) that the error affected his substantial rights.    United States

v. Olano, 507 U.S. 725, 732-35, 113 S. Ct. 1770, 1777-78 (1993).

If all three of those elements exist, a fourth element appears:

A court should correct the error where it “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”

The burden to prove all of the above falls on the defendant.     Id.

at 736, 113 S. Ct. at 1779.   Robins has met the first two require-

ments.   See, e.g., United States v. Mares, 402 F. 3d 511, 521 (5th

Cir. 2005), cert. denied, 126 S. Ct. 43 (2005).       This circuit’s

precedent requires that a defendant alleging Booker error must meet

the third prong by showing that the sentencing court “would have



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reached    a    significantly   different    result”   under     an    advisory

sentencing scheme rather than a mandatory one.           Id. at 521.

               Here, the district court exercised its discretion to

depart    upwardly    because   Robins’s    criminal   history    was    under-

represented. Robins cannot point to any evidence that the district

court would have imposed a lower sentence but for the mandatory

guidelines scheme; therefore, he has not met his burden of showing

that any Booker error affected his substantial rights.                See United

States v. Saldana, 427 F.3d 298, 308 n.38 (5th Cir. 2005) (“[W]e

doubt whether a defendant could ever overcome plain error review of

a claimed Booker violation in cases where the district court has

upwardly departed.”)(citing United States v. Lee, 399 F.3d 864

(7th Cir. 2005)).       Accordingly, Robins’s sentence is

               AFFIRMED.




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