United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 30, 2005

Charles R. Fulbruge III Clerk No. 04-40389 Conference Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

EMERITO ZELAYA-VASQUEZ

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:03-CR-328-1 --------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

We previously affirmed Emerito Zelaya-Vasquez’s (Zelaya)

sentence. United States v. Zelaya-Vasquez, No. 04-40389 (5th

Cir. Dec. 17, 2004). The Supreme Court has vacated and remanded

for further consideration in light of United States v. Booker,

(2005). We 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40389 -2-

Zelaya argues that the district court erred by sentencing

him under a mandatory guidelines scheme. He contends that the

district court’s error is not subject to plain error review

because it is structural. He also asserts, based on the nature

of the error, that prejudice should be presumed. Zelaya concedes

that his structural error and presumed prejudice arguments are

foreclosed and raises them simply to preserve further review.

See United States v. Malveaux,

, 561 n.9 (5th Cir.

2005), petition for cert. filed (July 11, 2005) (No. 05-5297).

Because Zelaya did not challenge the mandatory application

of the sentencing guidelines before the district court, plain

error review applies. See United States v. Mares,

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)

(No. 04-9517). This court may correct forfeited errors only when

the appellant shows the following factors: (1) there is an

error, (2) that is clear or obvious, and (3) that affects his

substantial rights. United States v. Calverley,

(5th Cir. 1994) (en banc) (citing United States v. Olano,

(1993)). If these factors are established,

the decision to correct the forfeited error is within the sound

discretion of the court, and the court will not exercise that

discretion unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Olano,

. No. 04-40389 -3-

To establish plain error under Mares, Zelaya must

demonstrate that the district court would have reached a

significantly different result had he been sentenced under

advisory guidelines. See Mares,

. As Zelaya

concedes, he cannot make this showing.

Booker does not affect our prior holding on appeal that

Almendarez-Torres v. United States,

(1998), has not

been overruled. Accordingly, the judgment of the district court

is AFFIRMED.