                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   August 17, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40616
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JESUS CHAVEZ-HERRERA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:03-CR-939-1
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Jesus Chavez-Herrera (“Chavez”) appeals his conviction and

the 30-month sentence imposed following entry of his guilty plea

to one count of possession with intent to distribute 77.35

kilograms of marijuana.     Chavez contends for the first time that

his sentence must be vacated in light of United States v. Booker,

125 S. Ct. 738 (2005).

     Chavez asserts that the district court’s finding, made at

sentencing pursuant to U.S.S.G. § 3B1.4 that he used or attempted


     *
       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this opinion should not be published and is not precedent except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. 04-40616
                                -2-

to use minor children to avoid detection during the drug offense,

constituted reversible, plain error.   Chavez contends that this

finding was made in violation of his Sixth Amendment rights and

Booker because the finding enhanced his sentence based on facts

that were neither alleged in the indictment nor admitted.    Chavez

argues that the finding resulted in the application of a

substantially greater Guideline range and affected his

substantial rights.   Chavez also contends for the first time that

his sentence is unconstitutional because it was imposed pursuant

to a mandatory Sentencing Guidelines system.

     Our review of Chavez’s contentions is for plain error only.

United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.

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

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

must demonstrate error that is obvious and that affects his

substantial rights.   See Mares, 402 F.3d at 520.

     Chavez has demonstrated obvious error.    See Booker, 125 S.

Ct. at 749-50; Martinez-Lugo, 411 F.3d at 600; Mares, 402 F.3d at

520-21.   Nevertheless, he still must show that the error affected

his substantial rights; he must demonstrate that “the error must

have affected the outcome of the district court proceedings.”

Martinez-Lugo, 411 F.3d at 600 (citation and internal quotation

marks omitted).

     Chavez has not shown that any error affected his substantial

rights.   See Mares, 402 F.3d at 521-22.   He has not demonstrated

that “the sentencing judge--sentencing under an advisory scheme
                             No. 04-40616
                                  -3-

rather than a mandatory one--would have reached a significantly

different result.”   Id.    Based on the record before us, we do not

know what sentence the district court would have imposed had the

Guidelines been advisory.     See id. at 522.   Accordingly, Chavez

has not established plain error.     See Martinez-Lugo, 411 F.3d at

601; United States v. Bringier, 405 F.3d 310, 317-18 (5th Cir.

2005), petition for cert. filed (July 26, 2005) (No. 05-5535);

Mares, 402 F.3d at 521-22.

     Chavez contends for the first time on appeal that 21 U.S.C.

§ 841(a) and (b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000).     He asserts that the penalties

based on drug type and quantity set forth in 21 U.S.C. § 841(b),

which have been held to constitute sentencing factors rather than

elements of the offense, conflict with Apprendi and cannot be

severed from the substantive portions of the statutes.     Chavez

admits that he raises the issue to preserve it for further

review.

     As Chavez concedes, his arguments are foreclosed.      United

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

United States v. Valenzuela-Quevedo, 407 F.3d 728, 731 (5th Cir.

2005), petition for cert. filed (July 25, 2005) (No. 05-5556).

We are bound by our prior precedent.     See United States v. Lee,

310 F.3d 787, 789 (5th Cir. 2002).

     Chavez’s conviction and sentence are AFFIRMED.
