                                                       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. 04-41090
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MOISES ELISEO GARDUNO-HERMOSA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 5:04-CR-280-1
                      --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Moises Eliseo Garduno-Hermosa (Garduno) appeals the sentence

imposed following his conviction for conspiracy to possess with

intent to distribute in excess of five kilograms of cocaine.

Garduno argues for the first time on appeal that the district

court erred by sentencing him under a mandatory sentencing

guidelines scheme, that this issue is subject to de novo review,

and that prejudice should be presumed.   See United States v.

Booker, 125 S. Ct. 738 (2005).


     *
       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this opinion should not be published and is not precedent except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. 04-41090
                                -2-

     Garduno concedes that pursuant to United States v. Mares,

402 F.3d 511 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517), plain error review applies and that he

cannot establish that the district court’s error affected his

substantial rights.   He raises the issue solely to preserve

Supreme Court review.

     Because Garduno has not established that the district court

plainly erred in sentencing him, his sentence is AFFIRMED.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-34

(5th Cir. 2005), petition for cert. filed (July 25, 2005)

(No. 05-5556).
