                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 30, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 04-40446
                          Conference Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

JAVIER GARCIA-VARGAS

                       Defendant - Appellant

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 7:03-CR-412-1
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of Javier Garcia-Vargas.

See United States v. Garcia-Vargas, No. 04-40446, 115 Fed. Appx.

288 (5th Cir. Dec. 17, 2004).     The Supreme Court vacated and

remanded for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005).     We 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this opinion should not be published and is not precedent except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. 04-40446
                                  -2-

     Garcia contends that the district court’s application of a

sentencing guidelines enhancement based on the court’s finding

that Garcia’s unlawful weapons possession occurred in connection

with felony possession of marijuana violated the Sixth Amendment.

He concedes that such argument is raised for the first time on

appeal and is reviewable for plain error only.     See United States

v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for

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

     As Garcia admits, the district court made no statements

indicating that it would have imposed a lower sentence under an

advisory guidelines regime.    Accordingly, although the district

court’s enhancement of Garcia’s sentence constitutes error that

is plain, i.e., obvious, Garcia cannot demonstrate that the error

affected his substantial rights.     See id. at 521-22.

     Garcia correctly acknowledges that this court has rejected

the argument that a Booker error is a structural error or that

such error is presumed to be prejudicial.     See United States v.

Martinez-Lugo, 411 F.3d 597, 611 (5th Cir. 2005).    He likewise

concedes that our precedent forecloses his contention that

application of Booker’s remedial opinion to him violates the Ex

Post Facto Clause.     See United States v. Scroggins, 411 F.3d 572,

577 (5th Cir. 2005).    He raises these arguments to preserve them

for further review.    Garcia’s reliance on the plain error

analysis set forth in United States v. Dazey, 403 F.3d 1147 (10th

Cir. 2005), is unavailing in light of Mares.
                          No. 04-40446
                               -3-

      Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we

reinstate our judgment affirming Garcia’s conviction and

sentence.

     AFFIRMED.
