                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20444
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

STEVEN D. LUCK,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-115-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Steven D. Luck appeals his sentence for bank robbery in

violation of 18 U.S.C. § 2113(a).   Luck’s offenses occurred prior

to the decision in United States v. Booker, 543 U.S. 220 (2005),

and he was sentenced after Booker was decided.    Luck argues that,

although he is entitled to retroactive application of Booker’s

Sixth Amendment holding, the remedial portion of Booker’s

holding, which made the Sentencing Guidelines advisory, may not

be applied in his case without violating the Due Process and

Ex Post Facto Clauses of the Constitution.    He thus argues that


     *
       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this opinion should not be published and is not precedent except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. 05-20444
                                  -2-

the district court should have applied the Guidelines as

mandatory in his case but should not have enhanced his sentence

based on facts that were not charged in the superceding

information and were neither admitted by him nor found by a jury

beyond a reasonable doubt.    As Luck concedes, this argument is

foreclosed.   See United States v. Austin, 432 F.3d 598, 599-600

(5th Cir. 2005); United States v. Scroggins, 411 F.3d 572, 575-76

(5th Cir. 2005).    He has raised the issue to preserve it for

further review.    Accordingly, the district court’s judgment is

AFFIRMED.
