United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 4, 2005

Charles R. Fulbruge III Clerk No. 04-40550 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS RAY VELA-SALINAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:03-CR-948-ALL --------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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

PER CURIAM:*

This court affirmed the sentence of Luis Ray Vela-Salinas

(Vela). United States v. Vela-Salinas,

(5th Cir. Dec. 17, 2004)(No. 04-40550)(unpublished). The Supreme

Court 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40550 -2-

Vela argues that sentencing him under the mandatory

Sentencing Guidelines regime held unconstitutional in Booker

constituted reversible plain error. However, to meet the third

prong of the plain error analysis and show that the error

affected his substantial rights, Vela bears the burden of

“establish[ing] that the error affected the outcome of the

district court proceedings.” United States v. Valenzuela-

Quevedo,

(5th Cir. 2005), petition for cert.

filed (July 25, 2005) (No. 05-5556). Our review of the

sentencing transcript reveals that he has not carried this

burden. The transcript indicates that the district court

sentenced Vela to the middle of the applicable Guidelines range

and denied a defense motion for a downward departure. Nothing in

the record indicates that the sentencing judge would have given a

lower sentence if he had treated the Guidelines as advisory

rather than mandatory. See United States v. Mares,

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

(No. 04-9517).

Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we

reinstate our judgment affirming Vela’s conviction and sentence.

AFFIRMED.