                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 4, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40409
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JULIO CESAR VASQUEZ-ALEJOS, also known as Andre Maya-Galvan,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 1:03-CR-898-ALL
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of Julio Cesar Vasquez-

Alejos (Vasquez).     United States v. Vasquez-Alejos, 115 Fed.

Appx. 252 (5th Cir. 2004) (per curiam).     The Supreme Court

vacated and remanded for further consideration in light of

United States v. Booker, 125 S. Ct. 738 (2005).     See Vasquez-

Alejos v. United States, 125 S. Ct. 1995 (2005).     We requested




     *
       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this opinion should not be published and is not precedent except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. 04-40409
                                 -2-

and received supplemental letter briefs addressing the impact of

Booker.

     Vasquez argues that he is entitled to resentencing because

the district court sentenced him under the mandatory application

of the United States Sentencing Guidelines that was prohibited by

Booker.   This is the type of error that was experienced by the

other respondent in Booker, Fanfan.    Booker, 125 S. Ct. at

767-68.

     In United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th

Cir. 2005), this court rejected the argument that Vasquez seeks

to preserve for further review, that Fanfan error is structural

and presumptively prejudicial.    Instead, Fanfan error is subject

to the plain error analysis set forth in United States v. Mares,

402 F.3d 511 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517).    Martinez-Lugo, 411 F.3d at 600-01.     Thus,

because Vasquez raises this issue for the first time on remand

from the Supreme Court, and because he raised an argument related

to Blakely v. Washington, 542 U.S. 296 (2004), in his initial

brief before this court, his argument is reviewable for plain

error.    See United States v. Cruz,    F.3d   , No. 03-40886, 2005

WL 1706518, *2 (5th Cir. July 22, 2005).

     Vasquez concedes that the district court did not give any

indication that his sentence would have been lower if the

district court had sentenced him under the post-Booker advisory

regime.    Vasquez has therefore failed to establish “with a
                             No. 04-40409
                                  -3-

probability sufficient to undermine confidence in the outcome,

that if the judge had sentenced him under an advisory sentencing

regime rather than a mandatory one, he would have received a

lesser sentence.”     United States v. Infante, 404 F.3d 376, 395

(5th Cir. 2005); see United States v. Bringier, 405 F.3d 310, 317

(5th Cir. 2005), petition for cert. filed (July 26, 2005) (No.

05-5535).   He has therefore failed to show that the error

affected his substantial rights and has thus failed to establish

plain error.     See Martinez-Lugo, 411 F.3d at 600-01.

     Vasquez asserts, for the purpose of preserving the issue for

Supreme Court review, that this court’s standard under Mares and

Bringier that the defendant must prove that the error affected

his substantial rights is inconsistent with United States v.

Dominguez Benitez, 542 U.S. 74, ___, 124 S. Ct. 2333, 2340 n.9

(2004).

     Because nothing in Booker requires us to change our prior

affirmance in this case, we reinstate our judgment affirming

Vasquez’s sentence.

     AFFIRMED.
