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

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-20548
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FERNANDO BENITO-HERRERA, also known as Cako,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 4:03-CR-446-3
                         --------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Fernando Benito-Herrera appeals his guilty-plea sentence for

conspiracy to commit hostage taking in violation of 18 U.S.C.

§ 1203(a).     He argues that the enhancement of his sentence

pursuant to United States Sentencing Guidelines § 2A4.1(b)(3)

violates Blakely v. Washington, 124 S. Ct. 2531 (2004), because

the enhancement was not charged in the indictment and the facts

underlying the enhancement were not found by a jury or admitted

by him.   We do not address whether Benito-Herrera’s appeal waiver


     *
       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this opinion should not be published and is not precedent except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. 04-20548
                                  -2-

applies to his Blakely argument, because, even if he did not

waive the right to raise this argument on appeal, his sentence

should be affirmed.

       In Blakely, the Supreme Court held that the Sixth Amendment

prohibits state sentences greater than “the maximum sentence a

judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.”     Blakely, 124 S.

Ct. at 2537.     In United States v. Booker, 125 S. Ct. 738, 749-50

(2005), the Supreme Court held that the system of enhancements

established by the federal sentencing guidelines violated the

Sixth Amendment as construed in Blakely.

       This court’s review is for plain error because Benito-

Herrera’s Blakely argument is raised for the first time on

appeal.    See United States v. Mares, 402 F.3d 511, 520 (5th Cir

2005), petition for cert. filed (U.S. Mar. 31, 2005)

(No. 04-9517).    The enhancement of Benito-Herrera’s sentence

under U.S.S.G. § 2A4.1(b)(3) was plain error because the facts

underlying the enhancement were found by the sentencing judge

under a mandatory guidelines system.     See Mares, 402 F.3d at 520-

21.    Nothing in the record indicates, however, that the plain

error affected Benito-Herrera’s substantial rights.     See id. at

522.    Accordingly, Benito-Herrera’s sentence is AFFIRMED.
