                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                December 8, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-40022
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

PRISCILIANO JIMENEZ-CID, also known as
Romeo Garza

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. M-03-CR-625-1
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM and DAVIS,* Circuit Judges.

PER CURIAM:**

     We previously affirmed the sentence of Prisciliano Jimenez-

Cid for importation of marijuana.     While petition for certiorari

with the Supreme Court was pending in this case, the Supreme

Court decided United States v. Booker.1       It subsequently granted


     *
      By quorum. Judge Pickering participated in the original
panel but has since retired.
     **
       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this opinion should not be published and is not precedent except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
      125 S.Ct. 738 (2005).
                           No. 04-40022
                                -2-

Jimenez-Cid’s petition for certiorari and vacated and remanded

for reconsideration in light of Booker.

     The Government concedes, for purposes of argument, that

there was Booker error because the district court enhanced

Jimenez-Cid’s sentence based on facts, other than a prior

conviction, neither alleged in the indictment and proven to a

jury nor admitted by Jimenez-Cid.   However, because Jimenez-Cid

concedes that he did not preserve this error, he must show that

the error was plain by showing that the district court would have

sentenced him less harshly had it known the Sentencing Guidelines

were not mandatory.2   He has not done so.   There is no indication

in the record that the court would have given a lower sentence;

indeed, the only indication at all - that the court sentenced him

at the top of the Guidelines range - suggests the opposite.

Finally, Jimenez-Cid’s argument that Booker’s remedial holding

cannot be applied to him retroactively is foreclosed by this

court’s precedent.3

     Jiminez-Cid’s sentence is AFFIRMED.




     2
      See United States v. Mares, 402 F.3d 511, 521-22 (5th Cir.
2005).
     3
      See United States v. Scroggins, 411 F.3d 572, 575-77 (5th
Cir. 2005).
