UNITED STATES of America, Plaintiff-Appellee, v. Elias CHAPA-GUTIERREZ, Defendant-Appellant, 186 F. App'x 474

PER CURIAM: Elias Chapa-Gutierrez (Chapa) appeals the 33-month sentence imposed following his jury trial conviction for transporting illegal aliens within the United States. Chapa argues that, in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), his sentence must be vacated because it was enhanced on the basis of judicial factual findings. Specifically, he challenges the increase in his base offense level pursuant to U.S.S.G. § 2Ll.l(b)(5).

Chapa concedes that he did not raise a constitutional challenge to his sentence before the district court and that review is for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). The district court did commit Booker error because Chapa’s sentence was enhanced based on facts not alleged in the indictment or proved to a jury beyond a reasonable doubt. See Booker, 543 U.S. at 244, 125 S.Ct. 738. However, Chapa fails to meet his burden of showing that the error affected his substantial rights. See Mares, 402 F.3d at 521.

Chapa has not identified anything in the record indicating that the district court would have imposed a lower sentence under an advisory guidelines scheme. See id. 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 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.