                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 August 15, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 04-40623
                          Conference Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

ARMANDO CASTILLO-BUSTAMANTE, also known as Jorge Garcia

                       Defendant - Appellant

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 7:04-CR-23-ALL
                          --------------------

         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 Armando Castillo-Bustamante (Castillo).      United States v.

Castillo-Bustamante, No. 04-40623 (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(unpublished).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




     *
       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this opinion should not be published and is not precedent except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. 04-40623
                                 -2-

S. Ct. 1995 (2005).   We requested and received supplemental

letter briefs addressing the impact of Booker.

     Castillo 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).   Castillo’s reliance on an ambiguous

remark made by the sentencing judge is misplaced.     See United

States v. Creech, 408 F.3d 264, 271 (5th Cir. 2005) (court’s mere

expression of sympathy for the defendant is insufficient).

     Thus Castillo 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 Mares, 402 F.3d at 520-22; see

also United States v. Malveaux,      F.3d      , No. 03-41618, 2005

WL 1320362, *1 n.9 (5th Cir. Apr. 11, 2005).

     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 Castillo’s conviction

and sentence.

     AFFIRMED.
