* Pursuant to 5 TH C IR . 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should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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 convi ction and

sentence of Francisco Javier Reyes-Quintanilla. United States v.

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

Suprem e Court vacated and remanded for further consideration in

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

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

. We

requested and received su pplemental letter briefs addressing the2

impact of Booker

.

In his original appeal to this court, Reyes-Quintanilla

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

review for plain error. S ee 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 v iewed and acted under the Sentencing Guidelines as

mandatory and not discretionary. Reyes-Quintanilla, however,

identifies no evidence in the record suggesting that th e district

court “would have reached a significantly different result” under an
advisory scheme rather than a mandatory one. U nited States v. Mares ,

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

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

showing of plain error that is required by our precedent. S ee 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 n on-mandatory Guidelines regime.”);

United S tates 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 probabil ity of a3

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 err or 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 noth ing in the Supreme Court's Booker decision

requires us to c hange 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.