                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-51341
                          c/w No. 04-51368
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GABRIEL RUBALCABA,
                                    Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                     USDC No. 3:04-CR-713-ALL
                   USDC No. 3:04-CR-923-ALL-FM
                       --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Gabriel Rubalcaba appeals the sentences he received after he

pleaded guilty to importing more than 100 kilograms of marijuana

with intent to distribute and to escape from a federal prison.

For the first time on appeal, Rubalcaba argues that his sentences

for both convictions should be vacated and his case remanded

under United States v. Booker, 543 U.S. 220 (2005), because the

district court treated the Guidelines as mandatory.



     *
       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this opinion should not be published and is not precedent except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. 04-51341
                         c/w No. 04-51368
                                -2-

     In the marijuana case, Rubalcaba waived his right to appeal;

the Government however, does not seek its enforcement.     See

United States v. Lang, 440 F.3d 212, 213 (5th Cir. 2006); United

States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).

     Because Rubalcaba raises his Booker argument for the first

time on appeal, we review only for plain error.   See United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th. Cir.),

cert. denied, 126 S. Ct. 267 (2005).   Although the mandatory

application of the Sentencing Guidelines constitutes error that

is now clear in light of Booker, Rubalcaba has not shown that

this error affected his substantial rights.   See id.    That

Rubalcaba was sentenced at the lowest end of the guidelines range

does not indicate that his sentence would likely have been

different under advisory Guidelines.   See United States v.

Bringier, 405 F.3d 310, 317-18 & n.4. (5th Cir.), cert. denied,

126 S. Ct. 264 (2005).

     AFFIRMED.
