                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                               January 4, 2006
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 04-40225



                       UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

                                  v.

               JAMES HELTON, also known as Defendant #6,

                                                 Defendant - Appellant


             Appeal from the United States District Court
                   for the Eastern District of Texas


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     In our previous opinion in this case, we affirmed Defendant-

Appellant Helton’s conviction and sentence.        See United States v.

Helton, No. 04-40225, 115 Fed. Appx. 687 (5th Cir. 2004) (per

curiam) (unpublished).      Following our judgment, Helton filed a

petition for certiorari.       The Supreme Court granted Helton’s

petition for certiorari, vacated our judgment, and remanded the


     *
      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this opinion should not be published and is not precedent except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.

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case to this court for further consideration in light of United

States v. Booker, 125 S. Ct. 738 (2005).            We now reconsider the

matter in light of Booker and decide to reinstate our previous

judgment affirming Helton’s conviction and sentence.

     Helton raised a Booker-related challenge to his sentence for

the first time on direct appeal. Because Helton never raised a

Booker objection in trial court, however, Appellant’s claim would

fail under the plain-error test discussed in United States v.

Mares,   402   F.3d   511,   520-22   (5th   Cir.   2005).   There   is   no

indication that the district court, if given the opportunity to

treat the guidelines as advisory only, would have imposed a lesser

sentence.

     For the reasons stated above, our prior disposition remains in

effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Helton’s

conviction and sentence.




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