                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 20, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40364
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

GREGORY C. JACKSON,
                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                       USDC No. 4:03-CR-143-1-RAS
                          --------------------

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

     Gregory C. Jackson pleaded guilty to one count of conspiracy

to commit mail fraud.     Jackson’s guilty plea established that

Jackson and two other persons obtained lines of credit in the

names of fictitious corporations and then used those lines of

credit to obtain computers and other electronic equipment from

Dell, Inc.     Based on the amount of the loss set forth in the

Presentence Report, the district court increased Jackson’s

offense level by ten points, from six to 16.     This resulted in a

Sentencing Guideline range of 27 to 33 months.     Jackson now

     *
       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this opinion should not be published and is not precedent except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. 04-40364
                                   -2-

appeals on the basis that the enhancement violated his Sixth

Amendment rights pursuant to United States v. Booker, 125 S. Ct.

738 (2005).

       As Jackson failed to raise this claim in the district court,

our review is for plain error.      See United States v. Mares,

      F.3      , No. 03-21035, 2005 WL 503715 (5th Cir. Mar. 4,

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

2005).      In order to establish plain error, Jackson must show:

(1) error, (2) that is clear or obvious, and (3) that affects

substantial rights.      Id. at *8; United States v. Infante,

F.3      , No. 02-50665, 2005 WL 639619 at *13 (5th Cir. Mar. 21,

2005).      If all three conditions are met, this court may then

exercise its discretion to correct the error if (4) the error

seriously affects the fairness, integrity, or public reputation

of judicial proceedings.      Mares, 2005 WL 503715 at *8.

       Jackson meets the first two prongs of the plain error test

because the enhancement was based on facts found by the district

court, which constitutes obvious error after Booker.         See id.

Nevertheless, Jackson’s claim fails at the third step of the

plain error test because he has not shown that the error affected

his substantial rights.      In order to meet that burden, a

defendant is required to demonstrate “with a 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
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                                -3-

sentence.”   Infante, 2005 WL 639619 at *13.   There is no

indication in the record that the district court would have

imposed a lower sentence if the guidelines had been advisory.

As Jackson has not satisfied the third prong of the plain error

test, he is not entitled to resentencing.

     Accordingly, the judgment of the district court is AFFIRMED.
