UNITED STATES of America, Plaintiff-Appellee, v. Moises Eliseo GARDUNO-HERMOSA, Defendant-Appellant, 141 F. App'x 359

PER CURIAM: Moisés Elíseo Garduño-Hermosa (Garduñ

o) appeals the sentence imposed following his conviction for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine. Garduño argues for the first time on appeal that the district court erred by sentencing him under a mandatory sentencing guidelines scheme, that this issue is subject to de novo review, and that prejudice should be presumed. See United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Garduño concedes that pursuant to United States v.

Mares, 402 F.3d 511 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517), plain error review applies and that he cannot establish that the district court’s error affected his substantial rights. He raises the issue solely to preserve Supreme Court review. Because Garduño has not established that the district court plainly erred in sentencing him, his sentence is AFFIRMED. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-34 (5th Cir.2005), petition for cert. filed (July 25, 2005) (No. 05-5556). 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.