*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should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

November 15, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 04-40589

Conference Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO JAVIER REYES-QUINTANILLA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-26-1

_________________________________________________________________

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 Francisco Javier Reyes-Quintanilla. United States v.

Reyes-Quintanilla, No. 04-40589 (5th Cir. Oct. 21, 2004). The

Supreme Court vacated and remanded for further consideration in

light of United States v. Booker, 125 S. Ct. 738 (2005). See

Gonzalez-Orozco v. United States, 125 S. Ct. 1368 (2005). We

requested and received supplemental letter briefs addressing the
2

impact of Booker.

In his original appeal to this court, Reyes-Quintanilla

made a Blakely objection to his sentencing. Because ReyesQuintanilla did not make this argument at the district court, we

review for plain error. See United States v. Cruz, 418 F.3d 481, 484

(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. Reyes-Quintanilla, 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,

402 F.3d 511, 521 (5th Cir. 2005), cert. denied, 126 S. Ct. 43

(2005). Accordingly, Reyes-Quintanilla cannot make the necessary

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

States v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005) (comments

that sentence was “harsh” are insufficient to demonstrate that

defendant’s substantial rights were affected), cert. denied, 126 S.

Ct. 264 (2005); United States v. Creech, 408 F.3d 264, 272 (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, 405 F.3d 260, 262 (5th Cir.

2005) (sentence at the bottom of the Guideline range and potential

mitigating factors do not raise a reasonable probability of a
3

different sentence), cert. denied, 126 S. Ct. 202 (2005).

Furthermore, Reyes-Quintanilla 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, 402 F.3d at 520-22; see also United States v. Malveaux,

411 F.3d 558, 561 n.9 (5th Cir. 2005), cert. denied, 124 S. Ct. 194

(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 Reyes-Quintanilla’s conviction and sentence.

AFFIRMED.