                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 August 17, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40669
                         Conference Calendar



UNITED STATES OF AMERICA,
                                     Plaintiff-Appellee,

versus

JORGE CORTEZ,
                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 1:03-CR-183-ALL-MAC
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Jorge Cortez appeals his sentence after his guilty-plea

conviction of possession of a prohibited object by an inmate.

Cortez argues on appeal that his case should be remanded for

resentencing because, under United States v. Booker, 125 S. Ct.

738 (2005), the district court plainly erred in not considering

all of the factors listed in 18 U.S.C. § 3553 equally and in not

treating the Sentencing Guidelines as advisory.

     As Cortez concedes, our review is for plain error.        See

United States v. Mares, 402 F.3d 511, 513 (5th Cir. 2005),


     *
       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this opinion should not be published and is not precedent except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. 04-40669
                                 -2-

petition for cert. filed (Mar. 31, 2005) (No. 04-9517).      Here,

the district court erred by imposing a sentence pursuant to a

mandatory application of the Sentencing Guidelines.    See Booker,

125 S. Ct. at 768; see also Mares, 402 F.3d at 520-21 & n.9.

However, Cortez cannot establish that this error affected his

substantial rights.    The record does not establish that the

sentencing court would have imposed a different sentence had it

been proceeding under an advisory guideline scheme.    In the

absence of a showing that his sentence likely would have been

different, Cortez cannot establish plain error, and his Booker

argument fails.   See United States v. Valenzuela-Quevedo, 407

F.3d 728, 733 (5th Cir. 2005), petition for cert. filed (July 25,

2005) (No. 05-5556).

     Cortez also asserts that in light of Booker, under 18 U.S.C.

§ 3584(a), the district court may now sentence him to a

concurrent term of imprisonment.    Regardless whether the

Sentencing Guidelines required a consecutive sentence, the

statute of conviction, 18 U.S.C. § 1791(a)(2), requires a

consecutive sentence.    See 18 U.S.C. § 1791(a)(2), (c).    Thus,

Booker did not affect whether the district court could have

sentenced Cortez to a concurrent sentence.    The judgment of the

district court is AFFIRMED.
