                                                          United States Court of Appeals
                                                                   Fifth Circuit

                 IN THE UNITED STATES COURT OF APPEALS         FILED
                         FOR THE FIFTH CIRCUIT               August 4, 2005

                                                         Charles R. Fulbruge III
                             No. 04-10518                        Clerk




UNITED STATES OF AMERICA

                  Plaintiff - Appellee

v.

ROBERTO FERNANDEZ-RODRIGUEZ

                  Defendant - Appellant

                         --------------------
         Appeal from the United States District Court for the
                  Northern District of Texas, Dallas
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     The Supreme Court vacated the sentence in this case and

remanded the case to this Court to reconsider in light of United

States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).

Subsequently, we requested letter briefs from the parties with

respect to Booker issues.     Having reviewed the parties’ letter

briefs, we affirm the judgment of the district court.




     *
       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this opinion should not be published and is not precedent except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. 04-10518
                                -2-

     Appellant’s Booker claim is foreclosed by the waiver of an

appeal provision in his plea agreement.   As conceded in

Appellant’s letter brief, this Court’s precedents would not

recognize an infirmity in the waiver even after Booker.      See

United States v. Cortez, ___ F.3d ___, No. 04-10152, 2005 WL

1404944 (5th Cir. June 16, 2005).

     Moreover, even if waiver of an appeal provision would not

foreclose consideration under this Court’s precedents,

Appellant’s Blakely/now-Booker claim was raised for the first

time on direct appeal.   If addressed, that claim would be

reviewed for plain error, and Appellant has failed to show that

the district court would have imposed a lesser sentence under an

advisory guidelines system.   Thus, the error, while clear and

obvious, has not been shown to affect Appellant’s substantive

rights.   See United States v. Dominguez Benitez, 542 U.S. 74,

___, 124 S. Ct. 2333, 2339 (2004).   Accordingly, for the

foregoing reasons, we AFFIRM the judgment of the district court.
