United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 15, 2005

_______________________ Charles R. Fulbruge III Clerk No. 04-40575 Conference Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO RODRIGUEZ-ZUNIGA,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:03-CR-1149-1 _________________________________________________________________

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, JONES and WIENER, Circuit Judges.

PER CURIAM:*

This court affirmed the judgment of conviction and

sentence of Armando Rodriguez-Zuniga. United States v. Rodriguez-

Zuniga, No. 04-40571 (5th Cir. Oct. 21, 2004). The Supreme Court

vacated and remanded for further consideration in light of United

States v. Booker,

(2005). See Gonzalez-Orozco v.

United States,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. In his original appeal to this court, Rodriguez-Zuniga

made a Blakely objection to his sentencing. Because Rodriguez-

Zuniga did not make this argument at the district court, we review

for plain error. See United States v. Cruz,

(5th

Cir. 2005).

Under the Booker holding that changes the Guidelines from

mandatory to advisory, there is error in this case because the

district court viewed and acted under the Sentencing Guidelines as

mandatory and not discretionary. Rodriguez-Zuniga, however,

identifies no evidence in the record suggesting that the district

court “would have reached a significantly different result” under

an advisory scheme rather than a mandatory one. United States v.

Mares,

(5th Cir. 2005), cert. denied,

(2005). Accordingly, Rodriguez-Zuniga cannot make the necessary

showing of plain error that is required by our precedent. See

United States v. Bringier,

, 318 n.4 (5th Cir. 2005)

(comments that sentence was “harsh” are insufficient to demonstrate

that defendant’s substantial rights were affected), cert. denied,

(2005); United States v. Creech,

(5th Cir. 2005) (“[M]ere sympathy ... is not indicative of a

judge’s desire to sentence differently under a non-mandatory

Guidelines regime.”); United States v. Hernandez-Gonzalez,

(5th Cir. 2005) (sentence at the bottom of the Guideline

range and potential mitigating factors do not raise a reasonable

probability of a different sentence), cert. denied,

2 (2005).

Furthermore, Rodriguez-Zuniga correctly acknowledges that

this court has rejected the argument that a Booker error is a

structural error or that such error is presumed to be prejudicial.

See Mares,

; see also United States v. Malveaux,

, 561 n.9 (5th Cir. 2005), cert. denied,

(2005). He desires to preserve this argument for further review.

Because nothing in the Supreme Court's Booker decision

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

to our prior determination and therefore reinstate our judgment

AFFIRMING Rodriguez-Zuniga’s conviction and sentence.

AFFIRMED.

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