                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 3, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-30059
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FRAZIER THOMAS,

                                      Defendant-Appellant.


                          --------------------
             Appeal from the United States District Court
                 for the Western District of Louisiana
                      USDC No. 5:03-CR-50073-ALL
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM and DAVIS, Circuit Judges.*

PER CURIAM:**

     This court affirmed the sentence of Frazier Thomas.          United

States v. Thomas, 104 Fed. Appx. 433 (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 appeal is being decided by a quorum due to the
retirement of Judge Pickering. 28 U.S.C. § 46(d).
     **
       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this opinion should not be published and is not precedent except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. 04-30059
                               - 2 -

     Thomas was convicted of possession with intent to distribute

more than 50 grams of cocaine base and was sentenced to a 210-

month term of imprisonment and to a five-year period of

supervised release.   On appeal, Thomas argued in his original

brief that the district court had erred in enhancing his sentence

pursuant to U.S.S.G. 2D1.1(b)(1).   Because the record reflected

that the district court would have imposed the same sentence,

even if the enhancement had not been applied, we determined that

the district court’s error, if any, was harmless and affirmed the

sentence.

     Because the question whether the sentence was imposed

legally in light of the rule in Booker has been asserted for the

first time on appeal, our review is for plain error.    See United

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

2005); United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),

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

     Because Thomas’s sentence was determined on the basis of

“judge found facts, not admitted by the defendant or found by the

jury, in a mandatory guidelines system,” the district court

plainly erred.   See Mares, 402 F.3d at 521.   To satisfy the

plain-error test in light of Booker, Thomas must demonstrate that

his substantial rights were affected by the error.***   Id. at 522.


     ***
        Thomas argues that the error affected his substantial
rights because it was structural or because prejudice should
otherwise be presumed. These arguments are foreclosed. See
United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. Apr.
11, 2005) (citing Mares, 402 F.3d at 520-22).
                             No. 04-30059
                                 - 3 -

Because the record reflects that the district court would have

imposed the same sentence if the firearms enhancement had not

been applied, there is no basis for concluding that the district

court would have imposed a lower sentence under an advisory

sentencing regime.   See id.

     We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in

this case.   We therefore affirm the conviction and sentence as

set by the district court.

     AFFIRMED.
