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. 04-40678 Conference Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE ANTONIO GARCIA

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:03-CR-953-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 conviction and sentence of Jose

Antonio Garcia. United States v. Garcia, No. 04-40678 (5th Cir.

Dec. 17, 2004) (unpublished).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 Booker’s impact.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40678 -2-

Garcia 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. Garcia 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 Garcia did not preserve this issue 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). To establish plain error

under Mares, Garcia must demonstrate that the district court

would have reached a significantly different result had he been

sentenced under advisory guidelines. See Mares,

.

As Garcia 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, that portion of our prior decision

is reinstated, and the district court’s judgment is AFFIRMED.