#### UNITED STATES of America, Plaintiff-Appellee, v. Ramiro PONCE, Defendant-Appellant.

No. 04-41628.

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Decided March 8, 2006.

James Lee Turner, Assistant U.S. Attorney, David Hill Peck, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM: *

Ramiro Ponce appeals his conviction and sentence following his guilty plea to importing cocaine. Ponce argues for the first time on appeal that his sentence is unconstitutional under *United States v. Booker,*543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because it was imposed pursuant to a mandatory application of the Sentencing Guidelines. This court reviews forfeited *Booker*errors for plain error. *United States v. Valenzuela-Quevedo,*407 F.3d 728, 732 (5th Cir.), *cert. denied,*— U.S.-, 126 S.Ct. 267, 163 L.Ed.2d 240 (2005). Thus, Ponce must demonstrate (1) error, (2) that is plain, and (3) that affects his substantial rights. *Id.*at 732. If the first three conditions are met, the court will reverse only if it finds that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. *Id.*at 733.

Ponce has established obvious error because he was sentenced under a mandatory guidelines regime. *See id.*To establish the third prong of plain error, however, Ponce must “point to statements in the record by the sentencing judge demonstrating a likelihood that the judge sentencing under an advisory scheme rather than a mandatory one would have reached a significantly different result.” *United States v. Pennell,*409 F.3d 240, 245 (5th Cir.2005).

Ponce’s argument that the error affected his substantial rights because it is structural, or at least presumptively prejudicial, has been rejected as inconsistent with this court’s analysis in *United States v. Mares,*402 F.3d 511 (5th Cir.), *cert. denied,*— U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). *See United States v. Malveaux,*411 F.3d 558, 560-61 n. 9 (5th Cir.), *cert. denied,*— U.S.-, 126 S.Ct. 194, 163 L.Ed.2d 209 (2005). Ponce fails to show that the error otherwise affected his substantial rights given that he points to statements by the district court that were merely sympathetic and not an indication that the district court wished to impose a different sentence under Guidelines that were not mandatory. *See United States v. Creech,*408 F.3d 264, 272 (5th Cir.), cert. *denied,*— U.S.-, 126 S.Ct. 777, 163 L.Ed.2d 602 (2005).

Ponce’s argument, raised for the first time on appeal, that 21 U.S.C. §§ 952 and *907960(a) and (b) are facially unconstitutional under *Apprendi v. New Jersey, 530 U.S.*466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because drug quantity is an element of the offense that must be presented to the trier of fact is foreclosed by this court’s precedent. *See United States v. Slaughter,*238 F.3d 580, 582 (5th Cir. 2000).

AFFIRMED.

*

 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.