                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40956
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OSCAR JAVIER MARTINEZ-MARTINEZ,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-23-ALL
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Oscar Javier Martinez-Martinez (Martinez) appeals the

sentence imposed following his guilty-plea conviction for illegal

entry.   Martinez argues that the district court erred by imposing

a two-level upward adjustment to his sentence for obstruction of

justice and denying a two-level downward adjustment for

acceptance of responsibility.   Martinez contends that the

obstruction of justice adjustment was based on facts to which he




     *
       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this opinion should not be published and is not precedent except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. 04-40956
                                 -2-

did not admit, which were not found by a jury beyond a reasonable

doubt, and which were not charged in the indictment.

     Because Martinez raises these issues for the first time on

appeal, we review only for plain error.     See United States v.

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

filed (Mar. 31, 2005) (No. 04-9517).    We may correct forfeited

errors only when: (1) there is an error, (2) that is clear or

obvious, and (3) that affects the appellant’s substantial rights.

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)

(en banc) (citing United States v. Olano, 507 U.S. 725, 731-37

(1993)).

     During the pendency of this appeal, the Supreme Court held

in United States v. Booker, 125 S. Ct. 738, 756 (2005), that

“[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

doubt.”    Accordingly, application of the adjustment for

obstruction of justice constitutes error under Booker and that

error is now plain in light of Booker.     Even if we assume,

arguendo, that the district court also committed Booker error by

denying a downward adjustment for acceptance of responsibility,

Martinez has not met the third prong of the plain error test

because he has made no showing that he would have received a

lesser sentence had the district court sentenced him under an
                          No. 04-40956
                               -3-

advisory application of the sentencing guidelines.   See United

States v. Holmes, 406 F.3d 337, 365-66 (5th Cir. 2005).

     AFFIRMED.
