                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                February 26, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-40399
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

RAMON BAZAN, III,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 2:03-CR-230-1
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the conviction and sentence of Ramon

Bazan, III.     United States v. Bazan, No. 04-40399 (5th Cir.

Dec. 2, 2004) (unpublished).     The Supreme Court vacated and

remanded for further consideration in light of United States v.

Booker, 543 U.S. 220 (2005).     Bazan v. United States, 126 S. Ct.

2860 (2006).     This court requested and received supplemental

letter briefs addressing the impact of Booker.


     *
       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this opinion should not be published and is not precedent except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. 04-40399
                                -2-

     In his supplemental letter brief, Bazan contends that the

district court violated his Sixth Amendment right to a jury trial

when it enhanced his sentence based on facts that were neither

admitted by him nor found by a jury beyond a reasonable doubt.

He acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but

seeks to preserve the issue for further review.

     Bazan also contends that the district court committed

reversible plain error when it sentenced him pursuant to the

mandatory Sentencing Guidelines held unconstitutional in Booker.

By challenging his sentence under Blakely v. Washington, 542 U.S.

296 (2004), on direct appeal, Bazan has sufficiently preserved

this issue for review on remand from the Supreme Court.

See United States v. Cruz, 418 F.3d 481, 484 (5th Cir.),

cert. denied, 126 S. Ct. 770 (2005).

     The district court erred when it sentenced Bazan pursuant to

the mandatory guidelines system held unconstitutional in Booker.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th

Cir.), cert. denied, 126 S. Ct. 267 (2005).   A Fanfan error is

neither structural nor presumptively prejudicial and, instead, is

subject to the plain error analysis set forth in United States v.

Mares, 402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).   See United States v. Martinez-Lugo, 411 F.3d 597, 601
                           No. 04-40399
                                -3-

(5th Cir.), cert. denied, 126 S. Ct. 464 (2005); United States v.

Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S.

Ct. 194 (2005).

     Bazan has not demonstrated that the district court’s error

affected his substantial rights.   Although Bazan argues that the

district court could have imposed a lower sentence based on the

age of the convictions used to apply the armed career criminal

enhancement, as he acknowledges, the district court made no

remarks indicating that it would have imposed a different

sentence under an advisory guidelines system.   In fact, the

district court rejected Bazan’s request that he be sentenced at

the bottom of the guideline range.   Given the lack of evidence

indicating that the district court would have reached a different

conclusion, Bazan has not demonstrated that his substantial

rights were affected, and, thus, he has failed to establish plain

error.   See Mares, 402 F.3d at 520-22.

     Booker does not require this court to change the prior

affirmance in Bazan’s case.   Accordingly, we REINSTATE our

judgment affirming Bazan’s conviction and sentence.

     AFFIRMED.
