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

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40477
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

VICENTE SEPULVEDA-RODRIGUEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:03-CR-837-ALL
                      --------------------

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

PER CURIAM:*

     Vicente Sepulveda-Rodriguez appeals the sentence imposed

following his guilty-plea conviction of possessing with the

intent to distribute cocaine.   Although Sepulveda-Rodriguez

signed a waiver-of-appeal provision as part of his written plea

agreement, we pretermit discussion of the validity of that waiver

because Sepulveda-Rodriguez is not entitled to relief.

     For the first time on appeal, Sepulveda-Rodriguez argues

that the district court erred by sentencing him to the mandatory


     *
       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this opinion should not be published and is not precedent except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. 04-40477
                                -2-

ten-year minimum term of imprisonment set forth in 21 U.S.C.

§ 841(b)(1)(A).   He contends that the Supreme Court’s opinion in

United States v. Booker, 125 S. Ct. 738 (2005), rendered

discretionary a sentencing court’s application of the minimum

sentence set forth in 21 U.S.C. § 841(b)(1)(A) and the “safety

valve” provision set forth in 18 U.S.C. § 3553(f).    However,

Booker is silent as to those issues, and Sepulveda-Rodriguez has

cited no other authority for his argument.   Sepulveda-Rodriguez

has not shown error.

      Also for the first time on appeal, Sepulveda-Rodriguez

argues that the district court erred when it sentenced him

pursuant to the mandatory United States Sentencing Guidelines

scheme held unconstitutional in Booker.   Application of the

Guidelines in their mandatory form constitutes error that is

plain.   United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir.), cert. denied, 126 S. Ct. 267 (2005).     However, the

district court’s error did not affect the outcome of the

sentencing proceedings.   As Sepulveda-Rodriguez has not shown

that the district court’s error affected his substantial rights,

he has not established reversible plain error.     See id. at 733-

34.

      The judgment of the district court is AFFIRMED.
