          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 May 13, 2009
                                No. 08-40046
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

CARLOS QUINTANILLA-GONZALEZ, also known as Martin Quintana,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 7:04-CR-290-16


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Carlos Quintanilla-Gonzalez (Quintanilla) pleaded guilty to one count of
conspiracy to possess marijuana and cocaine with intent to distribute (count one)
and one count of conspiracy to launder monetary instruments (count three), in
violation of 21 U.S.C. §§ 841, 846 and 18 U.S.C. § 1956(a)(1), (h). Quintanilla
now appeals his conviction on count three as well as his concurrent sentences of
168 months in prison. For the following reasons, we affirm.



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40046

      Quintanilla first contends that his plea of guilty to the money laundering
conspiracy was not knowing and voluntary. According to Quintanilla, in light
of United States v. Santos, 128 S. Ct. 2020 (2008), the term “proceeds” under
§ 1956(a)(1) means profits rather than gross receipts. Quintanilla argues that
there was an insufficient factual basis to show that the proceeds of the drug
operation were profits and that the district court failed to advise him that
proceeds means profits and not gross receipts; thus, he contends, his plea is
invalid. As Quintanilla concedes, we review his arguments for plain error. See
United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002). Quintanilla must show
that any error was plain, i.e., clear or obvious, and that it affected his
substantial rights. Id.
      As we have previously explained, the law governing the definition of
proceeds under § 1956 remains unclear even after Santos. See United States v.
Brown, 553 F.3d 768, 783-85 (5th Cir. 2008). Accordingly, any error by the
district court could not have been clear or obvious. See id; see also United States
v. Fernandez, 559 F.3d 303, 315-16 (5th Cir. 2009) (same). Further, although
Quintanilla contends that the purported error resulted in a greater sentence,
thereby affecting his substantial rights, his burden is to demonstrate a
reasonable probability that, but for the error, he would not have pleaded guilty.
See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In sum, he has
shown no reversible plain error with respect to his guilty plea.
      Quintanilla next challenges the imposition of his sentence, alleging that
the mandatory application of the Sentencing Guidelines, without consideration
of the factors under 18 U.S.C. § 3553(a), was unconstitutional in light of United
States v. Booker, 543 U.S. 220 (2005), and Gall v. United States, 128 S. Ct. 586
(2007). As a threshold matter, we agree, and the Government concedes, that
Quintanilla’s waiver provision in his plea agreement does not bar his appeal on
this ground. See United States v. Reyes-Celestino, 443 F.3d 451, 453 (5th Cir.
2006).

                                        2
                                  No. 08-40046

      As with his challenge to his guilty plea, Quintanilla did not preserve this
issue, and we review only for plain error. In light of Booker, which rendered the
Sentencing Guidelines advisory, the application of the Guidelines as mandatory
constitutes error that is plain. See United States v. Martinez-Lugo, 411 F.3d 597,
600 (5th Cir. 2005).   However, Quintanilla points to nothing in the record
indicating a likelihood that the district court would have imposed a significantly
different sentence had it been operating under an advisory rather than
mandatory regime. See id.; United States v. Mares, 402 F.3d 511, 521 (5th Cir.
2005). Thus, he has failed to show that any error affected his substantial rights.
See Mares, 402 F.3d at 521-22.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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