                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS             April 6, 2006
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                             No. 04-30275




UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,
versus

DARRELL WEST,

                                              Defendant-Appellant.


                          - - - - - - - - - -
            Appeal from the United States District Court
                for the Western District of Louisiana
                      (Criminal No. 03-50094-01)
                          - - - - - - - - - -
           ON REMAND FROM THE UNITED STATES SUPREME COURT

Before REAVLEY, DAVIS, and WIENER Circuit Judges.

PER CURIAM:*

     This matter is before us on remand from the United States

Supreme Court for reconsideration in light of its recent opinion in

United States v. Booker.1        At our request, the parties have

submitted supplemental letter briefs addressing the impact of

Booker.    For the following reasons, we find that Booker does not

affect Defendant-Appellant Darrell West’s sentence.

                            I.   BACKGROUND




     *
        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this opinion should not be published and is not precedent except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.
     1
         543 U.S. ——, 125 S. Ct. 738 (2005).
      West pleaded guilty to conspiring to distribute 50 grams or

more of cocaine base, distributing 50 grams or more of cocaine

base, and possessing with the intent to distribute 50 grams of

cocaine base.     The district court sentenced West to 292 months of

imprisonment.     West appealed his sentence, and we affirmed in an

unpublished opinion.2           West then appealed his sentence to the

United States Supreme Court, which, as noted above, remanded to us

for reconsideration in light of Booker.

                                II.    DISCUSSION

A.    Standard of Review

      West raised his Booker claims for the first time on appeal.

Therefore, we review for plain error.3              This means that we will not

remand for resentencing unless there is “(1) error, (2) that is

plain,    and   (3)    that    affects     substantial        rights.”4      If   the

circumstances     meet    all    three     criteria,     we    may   exercise     our

discretion to notice the error, but only if it “seriously affects

the   fairness,       integrity,      or   public      reputation    of    judicial

proceedings.”5

      Since     Booker,       sentencing       under     mandatory        Guidelines

constitutes (1) error, and that error is (2) plain.6                  Whether the


      2
      U.S. v. West, No. 04-30275, 117 Fed. Appx. 340 (5th Cir. Dec.
8, 2004).
      3
       U.S. v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
      4
       U.S. v. Cotton, 535 U.S. 625, 631 (2002).
      5
       Id.
      6
       Mares, 402 F.3d at 521.
                                           2
error affects substantial rights is a more complex inquiry in which

the defendant bears the burden of proof, and he carries his burden

if he can “demonstrate a probability ‘sufficient to undermine

confidence in the outcome.’”7      The defendant demonstrates such a

probability when he identifies from the record an indication that

the sentencing judge would have reached a significantly different

result under an advisory Guidelines scheme.8

B.   Merits

     West concedes that he cannot meet his burden to show plain

error under Mares.        Instead, West presents three alternative

arguments.     First, he urges the court to reconsider Mares.   Mares,

however, is the settled law of this circuit, and we can revisit it

only en banc or following a Supreme Court decision that effectively

overturns it. Second, West argues that Booker error is structural,

and that we should therefore remand for resentencing on that

ground. This circuit, however, has determined that Booker error is

not structural.9    Finally, West insists that Booker error should be

presumed prejudicial.      Again, this circuit has determined that

Booker error should not be presumed prejudicial.10     West presents

no viable ground for remand.     Accordingly, we affirm his original

sentence.

     7
      Id. (quoting U.S. v. Dominguez Benitez, 542 U.S. 74 (2004)).
     8
      Id. at 522.
     9
      U.S. v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005);
U.S. v. Arnold, 416 F.3d 349, 2005 WL 1546254 at *9 n.23 (5th Cir.
2005).
     10
          Arnold, 419 F.3d 349, 2005 WL at *9 n.23.
                                   3
                      III.   CONCLUSION

     As the district court did not commit plain error, West’s

sentence is

AFFIRMED.




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