                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 29, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-41590
                           Summary Calendar



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

DIANA PATRICIA GAMBOA

                     Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-442-ALL
                       --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.

PER CURIAM:*

     Diana Patricia Gamboa appeals the sentence imposed following

her guilty-plea conviction for possession with intent to

distribute more than file kilograms (5.45 kilograms) of cocaine.

She argues that the district court committed reversible plain

error in sentencing her pursuant to the mandatory United States

Sentencing Guidelines held unconstitutional in United States v.

Booker, 125 S. Ct. 738 (2005).    Gamboa argues that the error is

structural, presumptively prejudicial, and, therefore, she need

     *
       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this opinion should not be published and is not precedent except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. 04-41590
                                   -2-

not show plain error.     This court has rejected this argument and

applied the plain error standard of review to such unpreserved

claims.   See United States v. Malveaux, ___ F.3d ___, No. 03-

41618, 2005 WL 1320362, *1 n.9 (5th Cir. Apr. 11, 2005); see also

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

(applying plain error standard of review), petition for cert.

filed, No. 04-9517 (U.S. Mar. 31, 2005).     The district court’s

application of the Guidelines in their mandatory form constituted

error that is plain.      See United States v. Valenzuela-Quevedo,

407 F.3d 728, 733 (5th Cir. 2005).     However, Gamboa has not shown

that the error affected her substantial rights as the record

gives no indication that the district court judge would have

sentenced her any differently had he known that the Guidelines

were only advisory.      See Mares, 402 F.3d at 522.   Therefore,

Gamboa has not shown that the district court’s imposition of her

sentence under the mandatory Guidelines constituted reversible

plain error.   See id.

     For the first time on appeal, Gamboa argues that 21 U.S.C.

§ 841, the statute under which she was convicted, is

unconstitutional in view of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Gamboa acknowledges that her argument is foreclosed by

United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000),

but states that she is raising it to preserve it for possible

Supreme Court review.     The issue is indeed foreclosed.    See
                            No. 04-41590
                                 -3-

Slaughter, 238 F.3d at 582; Valenzuela-Quevedo, 407 F.3d at 731

(same).

     Gamboa argues, and the Government concedes, that the case

should be remanded to allow the district court to correct a

clerical error in the judgment to reflect the district court’s

recommendation that Gamboa be placed in a federal correctional

institution in or near California.     “After giving any notice it

considers appropriate, the court may at any time correct a

clerical error in a judgment, order, or other part of the record,

or correct an error in the record arising from oversight or

omission.”   FED. R. CRIM. P. 36.   The error is obvious, and the

district court may correct such an error at any time under FED.

R. CRIM. P. 36.   Accordingly, the case is REMANDED for the limited

purpose of conforming the judgment to the oral recommendation

that Gamboa be placed in a federal correctional institution in or

near California.    Id.

     AFFIRMED; LIMITED REMAND TO CORRECT JUDGMENT.
