                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                  UNITED STATES COURT OF APPEALS                     May 12, 2005

                             FIFTH CIRCUIT                     Charles R. Fulbruge III
                                                                       Clerk

                             No. 03-30526
                           Summary Calendar


                           SEALED APPELLEE,

                                                       Plaintiff-Appellee,

                                versus

                           SEALED APPELLANT,

                                                   Defendant-Appellant.


         Appeals from the United States District Court
              for the Eastern District of Louisiana
                          (02-CR-29-1)



Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant   pleaded   guilty   to   one   count    of   conspiracy      to

distribute and possess with intent to distribute more than 100

kilograms of marijuana.    The district court sentenced Appellant to

87 months of imprisonment and five years of supervised release.

     In his guilty plea, Appellant waived “the right to appeal

[the] sentence on any ground” on direct appeal and in any post

conviction proceeding, including a motion under 28 U.S.C. § 2255.


     *
       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this opinion should not be published and is not precedent except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.
Appellant, however, reserved the right to appeal “any punishment

imposed in excess of the statutory maximum” (40 years) and “any

punishment to the extent it constitutes an upward departure from

the Guideline range deemed most applicable by the sentencing

court.”

     Appellant asserts the appeal waiver does not preclude this

appeal because the sentence was based on judicial findings of fact

neither admitted by Appellant nor found by a jury.                 Appellant

contends the sentence, therefore, exceeds the statutory maximum as

defined   in    Blakely    v.   Washington,    124    S.   Ct.   2531,   2537

(2004)(statutory maximum is the “maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant” (emphasis in original)).

     Given our court’s very recent holding in United States v.

McKinney, ___ F.3d ___, No. 04-41223, Slip op. at 3-4, (5th Cir. 15

April 2005), that neither Blakely nor United States v. Booker, 125

S. Ct. 738 (2005), changes the meaning of “guidelines range” for a

guilty-plea appeal-waiver, we doubt Appellant’s contention that

these   cases   change    the   definition    of   “statutory    maximum”   is

meritorious.    Even if this appeal is not precluded by Appellant’s

appeal-waiver, the claims raised fail plain error review.

     Relying on Blakely, Appellant asserts for the first time on

appeal that the district court made findings at sentencing on drug

quantity and on his role in the offense in violation of the Sixth


                                      2
Amendment.    Appellant     contends       the   use   of    these   findings    to

increase his sentence was reversible plain error.

     To demonstrate plain error, Appellant must show an error is

obvious and affects his substantial rights.                 See United States v.

Mares, ___ F.3d ___, 2005 WL 503715 *1, *8-*9 (5th Cir. 4 Mar.

2005).   To   show    the   error   affected       his      substantial   rights,

Appellant must demonstrate that “the sentencing judge — sentencing

under an advisory scheme rather than a mandatory one — would have

reached a significantly different result”.               Id. at *9.    Appellant

has not demonstrated the district court would have imposed a

different sentence.

                                                                      AFFIRMED




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