                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-30995
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAFAEL CRUZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                     USDC No. 2:98-CR-279-ALL
                       --------------------

Before DAVIS, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Rafael Cruz pleaded guilty to two counts of distribution of

heroin and was sentenced to 97 months of imprisonment on each

count, to run concurrently, three years of supervised release on

each count, to run concurrently, and a $200 special assessment.

Cruz argues that under United States v. Booker, 125 S. Ct. 738

(2005), his Sixth Amendment right to a jury trial was violated

when the district court adjusted his sentence for obstruction of

justice and did not adjust his sentence for acceptance 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this opinion should not be published and is not precedent except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.
                             No. 04-30995
                                  -2-

responsibility based on a fact that was not found by a jury

beyond a reasonable doubt.    Although the obstruction of justice

adjustment was based on several facts, Cruz contests only the

district court’s finding that he fled the jurisdiction to avoid

prosecution.   Cruz concedes that he admitted in a factual basis

that he fled the jurisdiction to avoid prosecution, but he argues

that he signed the factual basis before Blakely v. Washington,

124 S. Ct. 2531 (2004), was decided and that he would not have

waived his Sixth Amendment right to a jury trial concerning this

fact if he had known that Booker would subsequently require a

jury to find a fact used to adjust his sentence.

     Cruz does not contest the fact that he fled the jurisdiction

in an attempt to evade authorities.    Rather, he argues only that

he would not have admitted this fact if he had known that he had

a right to have a jury determine it under Booker.    However,

neither the pre-Booker nor the post-Booker regime required Cruz

to make such an admission, and Cruz offers no explanation why a

different fact finder and a different standard of review would

have affected his actions.    See United States v. Mares, 402 F.3d

511, 519 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517); United States v. Hull, 160 F.3d 265, 269

(5th Cir. 1998).   Furthermore, Booker does not entitle Cruz to a

jury determination of the contested fact.    See Mares, 402 F.3d at

518-19.   Rather, in the post-Booker regime, Cruz is entitled only

to a district court determination of an advisory guidelines range
                              No. 04-30995
                                   -3-

using a preponderance of the evidence standard of review and a

consideration of the other sentencing factors set forth in 18

U.S.C. § 3553(a).   See id.

     AFFIRMED.
