                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                December 8, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 02-10829
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

WILLIAM STEPHEN SOLESBEE,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 3:01-CR-27-1-R
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of William Stephen

Solesbee.     See United States v. Solesbee, 94 Fed. Appx. 207 (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).     This court requested and received

supplemental letter briefs addressing the impact of Booker.




     *
       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this opinion should not be published and is not precedent except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. 02-10829
                                  -2-

     Solesbee argues that the district court erroneously based

his sentence on facts that were neither admitted by him nor found

by the jury.    He concedes that review is for plain error only due

to his failure to raise an appropriate objection in the district

court.

     To establish plain error, Solesbee must show that there is

error, that it is clear, and that it affects both his substantial

rights and the integrity of the proceedings.     See United States

v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.     2005),

cert. denied,       U.S.   , 2005 WL 1811485 (Oct. 3, 2005) (No.

05-5556).   Solesbee has met the first and second prongs of this

test because the district court based his sentence upon facts

that were neither admitted by him nor found by the jury.      See

United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005) cert.

denied,     U.S.     , 2005 WL 816208 (Oct. 03, 2005) (No. 04-9517).

Nevertheless, Solesbee is not entitled to relief, as the record

does not show that he likely would have received a more lenient

sentence if the district court had acted under an advisory

sentencing scheme.     See Mares, 402 F.3d at 521.   Solesbee thus

has not established that this error affected his substantial

rights.   See id.

     The judgment of conviction is AFFIRMED IN PART AND REVERSED

IN PART for the reasons stated in our initial opinion.     The

judgment of sentence is AFFIRMED for the reasons given in this

opinion on remand.
