                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                February 24, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 05-40573
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellant,

versus

EDUARDO SAENZ,

                                      Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2031-ALL
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Eduardo Saenz pleaded guilty to transporting an undocumented

alien for purpose of commercial advantage or private financial

gain within the United States by means of a motor vehicle.          Saenz

was sentenced to a 44-month term of imprisonment and to a three-

year period of supervised release.    Saenz gave timely notice of

his appeal.

     Saenz’s offense occurred prior to the decision in United

States v. Booker, 543 U.S. 220 (2005), and he was sentenced after


     *
       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this opinion should not be published and is not precedent except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. 05-40573
                                  -2-

Booker was decided.    Saenz argues that, although he is entitled

to retroactive application of Booker’s Sixth Amendment holding,

the remedial portion of Booker’s holding, which made the

Sentencing Guidelines advisory, may not be applied in his case

without violating the Due Process and Ex Post Facto Clauses of

the Constitution.     Saenz thus argues that the district court

should have applied the sentencing guidelines as mandatory in his

case but should not have enhanced his sentence based on facts

that were not charged in the indictment and were neither admitted

by him nor found by a jury beyond a reasonable doubt.     As Saenz

concedes, this question is foreclosed.      See United States v.

Austin, 432 F.3d 598, 599–600 (5th Cir. 2005); United States v.

Scroggins, 411 F.3d 572, 575–76 (5th Cir. 2005).     He has raised

the issue to preserve it for further review.     The judgment is

AFFIRMED.
