                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                     December 8, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40125
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                               versus

                      ALEJANDRO TOVAR-AVILA,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                       (5:03-CR-1299-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Alejandro Tovar-Avila appeals his conviction and sentence for

possession with the intent to distribute more than five kilograms

of cocaine, in violation of 21 U.S.C. § 841.     Tovar contends his

sentence is unconstitutional in the light of United States v.

Booker, 125 S. Ct. 738 (2005), because he was sentenced under a

mandatory guidelines scheme.   He contends that a lesser sentence

would have been imposed in the absence of mandatory 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this opinion should not be published and is not precedent except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.
     As Tovar concedes, we review only for plain error.       United

States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005),

cert. denied, 2005 WL 1811485 (U.S. 3 Oct. 2005) (No. 05-5556);

United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert.

denied, 2005 WL 816208 (U.S. 3 Oct. 2005) (No. 04-9517).    Under our

plain error review, a “clear” or “obvious” error must affect

“substantial rights”; even then, the “decision to correct the

forfeited error [remains] within the sound discretion of the court

of appeals”.    United States v. Olano, 507 U.S. 725, 732-35 (1993).

     The district court committed error that is plain by sentencing

Tovar   under     a   mandatory   sentencing   guidelines    scheme.

Valenzuela-Quevedo, 407 F.3d at 733.    However, Tovar fails to meet

his burden of showing this error affected his substantial rights.

Mares, 402 F.3d at 520.       The district court made no comments

suggesting it would have imposed a lesser sentence in the absence

of mandatory guidelines.    See United States v. Bringier, 405 F.3d

310, 317 (5th Cir. 2005) (stating the issue as “whether [the

defendant] has demonstrated that the sentencing judge would have

reached a different result had it sentenced [the defendant] under

an advisory scheme rather than a mandatory one”), cert. denied,

2005 WL 1801192 (U.S. 3 Oct. 2005) (No. 05-5535).   Therefore, Tovar

fails to demonstrate plain error.

     Tovar contends for the first time on appeal that the statute

under which he was convicted, 21 U.S.C. § 841, is unconstitutional


                                  2
under Apprendi v. New Jersey. 530 U.S. 466, 490 (2000) (holding

that any fact other than a prior conviction may not be used to

enhance a defendant’s sentence beyond the statutory maximum unless

it is submitted to a jury and proved beyond a reasonable doubt).

As he concedes, however, this issue is foreclosed.             United States

v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532

U.S. 1045 (2001).      Tovar raises it only to preserve it for further

possible review.

     Tovar    also    maintains    that,   pursuant      to   Apprendi,     the

Government was required, but did not, prove to the jury beyond a

reasonable doubt he knew that he possessed the particular type and

quantity of controlled substance at issue in this case.                As he

concedes,    this    contention   is   foreclosed   by   United    States    v.

Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir.), cert. denied, 538

U.S. 1068 (2003), which held that knowledge of the drug type and

quantity is not an element of the offense.            He raises the issue

only to preserve it for possible review.

                                                                  AFFIRMED




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