                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                      October 5, 2005
                           FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                                No. 03-40888
                              Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

REYNALDO QUIROZ-ESCOBEDO,

                                           Defendant-Appellant.

                          ______________________

              Appeal from the United States District Court
                   for the Southern District of Texas
                         USDC No. M-03-CR-123-1
                         ______________________

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

      Reynaldo Quiroz-Escobedo pleaded guilty to importation of more

than fifty grams of methamphetamine, in violation of 21 U.S.C. §§

952(a), 960(a)(1), and 960(b)(1)(H).          At sentencing, the district

court calculated a Guidelines range of forty-six to fifty-seven

months,     and   sentenced   Quiroz-Escobedo     to   fifty-seven      months’

imprisonment and three years’ supervised release.



      *
        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should not be published and is not precedent except under the limited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.
     On     direct     appeal,     Quiroz-Escobedo       challenged      only   the

constitutionality of the statutes under which he was convicted. We

affirmed     both    the   judgment   of    conviction     and   the    sentence.1

Quiroz-Escobedo renewed his challenge in a consolidated petition

for writ of certiorari which was denied.2                Following the Supreme

Court’s decision in Blakely v. Washington,3 Quiroz-Escobedo filed

a petition for rehearing.         The Court then decided United States. v.

Booker,4    in   which     it    rendered   the   United      States    Sentencing

Guidelines purely advisory in nature.                  Subsequently, the Court

vacated its order denying Quiroz-Escobedo’s petition for writ of

certiorari, granted the writ, vacated our prior judgment and

remanded for further consideration in light of Booker.5

     On remand, Quiroz-Escobedo concedes that he did not make a

Blakely     or      Booker-type     objection     in    the    district     court.

Accordingly, our review is for plain error only.6                      In order to

prevail under plain error review, an appellant must show that (1)

there is an error, (2) the error is plain, and (3) the error




      1
        United States v. Quiroz-Escobedo, 87 Fed. Appx. 935 (5th Cir. Feb. 18,
2004) (unpublished).
     2
         Jimenez-Velasco v. United States, 124 S. Ct. 2856 (2004) (mem.).
     3
         542 U.S. 296 (2004).
     4
         125 S. Ct. 738 (2005).
     5
         Jimenez-Velasco v. United States, 125 S. Ct. 1110 (2005) (mem.).
     6
         See United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005).

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affects substantial rights.7        When all three of these requirements

are met, we will exercise our discretion to correct the error only

if it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.”8

     Quiroz-Escobedo argues that the district court committed plain

error because it sentenced him under the assumption of a mandatory

Guidelines     regime.     Further,    he     contends   that      this   error   is

structural, or at least presumed prejudical.              He candidly admits,

however, that based on the facts in the record, he cannot show

“with a probability sufficient to undermine confidence in the

outcome, that if the judge had sentenced him under an advisory

sentencing regime rather than a mandatory one, he would have

received a lesser sentence.”9

     Assuming arguendo that the district court committed plain

error when it sentenced him under a mandatory Guidelines regime,

Quiroz-Escobedo cannot satisfy the third prong of the plain error

standard as      his   argument   that       Booker   error   is   structural     or

presumed prejudicial is in the teeth of our decision in United

States v. Mares.10       A panel of this court cannot overrule a prior

panel’s decision in the absence of an intervening contrary or


     7
         See United States v. Olano, 507 U.S. 725, 732 (1993).
     8
         Id. at 734 (internal quotation marks and citations omitted).

     9
         United States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005).

      10
         402 F.3d 511, 520-22 (5th Cir. 2005); see United States v. Malveaux,
411 F.3d 558, 560 n.9 (5th Cir. 2005).

                                         3
superseding decision by this court sitting en banc or by the United

States Supreme Court.11       No such decision overruling Mares exists.

     Accordingly, we REINSTATE our prior judgment affirming Quiroz-

Escobedo’s conviction and sentence.




     11
          See Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).

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