                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 14, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-40145
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOHN JASON SOLLEDER,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                         USDC No. 1:03-CR-121-1
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of John Jason Solleder.

United States v. Solleder, 111 Fed. Appx. 738 (5th Cir. 2004)

(unpublished).     The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker, 125

S. Ct. 738 (2005).     We requested and have received supplemental

briefs addressing Booker’s impact.




     *
       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this opinion should not be published and is not precedent except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. 04-40145
                               -2-

     Solleder asserts that the district court erred by sentencing

him based on facts to which he did not admit and that were not

found by a jury beyond a reasonable doubt and by sentencing him

pursuant to mandatory guidelines.    He contends that the mandatory

application of the guidelines is a structural error and that

prejudice should be presumed.     He also asserts that he can meet

the plain error standard because it is reasonably probable that

he would have received a different sentence under advisory

guidelines given that he cooperated by admitting his conduct and

that he was sentenced at the lowest level under the guidelines.

     Because Solleder did not preserve his arguments before the

district court, plain error review applies.     See United States v.

Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert. denied, 2005 U.S.

LEXIS 6132 (U.S. Oct. 3, 2005).    This court may correct forfeited

errors only when the appellant shows the following factors:

(1) there is an error, (2) that is clear or obvious, and (3) that

affects his substantial rights.     United States v. Calverley,

37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United

States v. Olano, 507 U.S. 725, 731-37 (1993)).

     The error identified in Booker is not the use of extra

verdict enhancements, but rather the use of such enhancements

under a mandatory guidelines system.     See Mares, 402 F.3d at 521.

To establish that such an error affected an appellant’s

substantial rights, “the appellant must ordinarily point to

statements in the record by the sentencing judge demonstrating a
                             No. 04-40145
                                  -3-

likelihood that the judge sentencing under an advisory scheme

rather than a mandatory one would have reached a significantly

different result.”     See United States v. Pennell, 409 F.3d 240,

245 (5th Cir. 2005); Mares, 402 F.3d at 521.

     Solleder has not made the requisite showing.     This court has

rejected the argument that mandatory application of the

sentencing guidelines constitutes structural error or is

presumptively prejudicial.     See United States v. Malveaux, 411

F.3d 558, 561 n.9 (5th Cir. 2005), cert. denied, 2005 U.S. LEXIS

6485 (U.S. Oct. 3, 2005).    Additionally, the fact that Solleder

was sentenced at the lowest end of the guidelines does not

indicate that his sentence would likely have been different under

advisory guidelines.     See United States v. Bringier, 405 F.3d

310, 317-18 & n.4. (5th Cir. 2005), cert. denied, 2005 U.S. LEXIS

6686 (U.S. Oct. 3, 2005).    Finally, there is no indication that

the district court was inclined to decrease Solleder’s sentence

further based on his acceptance of responsibility.

     Because Solleder has not established plain error under

Booker, we REINSTATE OUR JUDGMENT affirming his sentence.
