                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 17, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-20547
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SERVANDO BENITO-NUNEZ, also known as Esias,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:03-CR-446-2
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Servando Benito-Nunez (Benito) pleaded guilty to aiding and

abetting the harboring (Counts 1 through 3) and transportation

(Counts 4 through 6) of aliens for the purpose of commercial

advantage and private financial gain and to conspiracy to commit

hostage-taking (Count 7).   He was sentenced to 120 months of

imprisonment on Counts 1 through 6 and 210 months of imprisonment

on Count 7, to run concurrently; three years of supervised

release on Counts 1 through 6 and five years of supervised


     *
       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this opinion should not be published and is not precedent except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. 04-20547
                                 -2-

release on Count 7, to run concurrently; and a $700 special

assessment that was ordered remitted by the district court on the

Government’s motion.

     Benito argues on appeal that under United States v. Booker,

125 S. Ct. 738 (2005), the district court reversibly erred in

increasing his offense level based on facts that were not alleged

in the indictment or admitted by him.      Because Benito did not

raise these constitutional arguments in the district court, this

court’s review is for plain error.    See United States v. Mares,

402 F.3d 511, 520 (5th Cir.), petition for cert. filed (Mar. 31,

2005) (No. 04-9517).

     The district court’s enhancement of Benito’s sentence

pursuant to a mandatory Sentencing Guidelines scheme based on

facts that were not alleged in the indictment or admitted by him

constituted error that was plain.    See id. at 520-21.    However,

his sentence at the low end of the guideline range does not alone

indicate that the district court would have sentenced him

differently under an advisory sentencing scheme.      See United

States v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005),

petition for cert. filed (July 26, 2005) (No. 05-5535).

Furthermore, nothing in the sentencing transcript indicates that

the district court would sentence him differently if application

of the Guidelines were not mandatory.      Accordingly, Benito has

failed to show that the district court’s plain error affected his

substantial rights.    See Mares, 402 F.3d at 520-21.

     AFFIRMED.
