                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-21004
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FLOYD OSCAR,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-225-ALL
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Floyd Oscar appeals the 27-month sentence imposed following

entry of his guilty plea to a charge of knowingly entering into

a marriage for the purpose of evading a provision of the

immigration laws.   Oscar argues, for the first time on appeal,

that the district court erred under United States v. Booker,

125 S. Ct. 738 (2005), in sentencing him pursuant to a mandatory

application of the Sentencing Guidelines.




     *
       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this opinion should not be published and is not precedent except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. 04-21004
                                 -2-

     Oscar contends the issue should be reviewed de novo because

Booker had not been decided at the time of his sentencing and

an objection would have been futile.    However, as Oscar

acknowledges, this court reviews the issue for plain error.

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

Cir.), cert. denied, 126 S. Ct. 267 (2005).

     In order to establish plain error, Oscar must establish that

(1) there is an error; (2) that is clear or obvious; and (3) that

affects his substantial rights.    United States v. Olano, 507 U.S.

725, 732-34 (1993).    If these criteria are met, this court has

the authority to correct the error, but is not required to do so.

Id. at 736.

     Oscar contends that the district court’s error was

“structural” and that prejudice should therefore be presumed.

This argument, however, is foreclosed by United States v.

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

S. Ct. 194 (2005).

     Oscar must demonstrate that the error affected his

substantial rights, Valenzuela-Quevedo, 407 F.3d at 733-34, and

he concedes that he cannot make such a showing based on the

record.   Because Oscar has failed to establish plain error, we

affirm his sentence.

     AFFIRMED.
