                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  August 10, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40162
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

SERGIO ARTURO ROSALES,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 5:03-CR-1379-1
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the judgment of conviction and sentence

of Sergio Arturo Rosales.     United States v. Rosales, No. 04-40162

(5th Cir. Dec. 17, 2004) (unpublished).     The Supreme Court

vacated and remanded for further consideration in light of United

States v. Booker, 125 S. Ct. 738 (2005).        See De La Cruz-Gonzalez

v. United States, 125 S. Ct. 1995 (2005).       We requested and




     *
       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this opinion should not be published and is not precedent except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. 04-40162
                                 -2-

received supplemental letter briefs addressing the impact of

Booker.

     Rosales argues that he is entitled to resentencing because

the district court sentenced him under a mandatory application of

the United States Sentencing Guidelines prohibited by Booker.

However, he identifies “no evidence in the record suggesting that

the district court would have imposed a lesser sentence under an

advisory guidelines system.”   United States v. Taylor, 409 F.3d

675, 677 (5th Cir. 2005).

     Rosales concedes that he cannot make the necessary showing

of plain error that is required by our precedent.   Furthermore,

he correctly acknowledges that this court has rejected the

argument that a Booker error is a structural error or that such

error is presumed to be prejudicial.   See United States v. Mares,

402 F.3d 511, 520-22 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517); see also United States v.

Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for

cert. filed (July 11, 2005) (No. 5297).    He desires to preserve

this argument for further review.

     Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we

therefore reinstate our judgment affirming Rosales’s conviction

and sentence.

     AFFIRMED.
