United States of America v. James Helton, also known as

*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this opinion should not be published and is not precedent except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.
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United States Court of Appeals
Fifth Circuit
F I L E D
January 4, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40225
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JAMES HELTON, also known as Defendant #6,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
In our previous opinion in this case, we affirmed Defendant-
Appellant Helton’s conviction and sentence. See United States v.
Helton, No. 04-40225, 115 Fed. Appx. 687 (5th Cir. 2004) (per
curiam) (unpublished). Following our judgment, Helton filed a
petition for certiorari. The Supreme Court granted Helton’s
petition for certiorari, vacated our judgment, and remanded the

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case to this court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). We now reconsider the
matter in light of Booker and decide to reinstate our previous
judgment affirming Helton’s conviction and sentence.
Helton raised a Booker-related challenge to his sentence for
the first time on direct appeal. Because Helton never raised a
Booker objection in trial court, however, Appellant’s claim would
fail under the plain-error test discussed in United States v.
Mares, 402 F.3d 511, 520-22 (5th Cir. 2005). There is no
indication that the district court, if given the opportunity to
treat the guidelines as advisory only, would have imposed a lesser
sentence.
For the reasons stated above, our prior disposition remains in
effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Helton’s
conviction and sentence.

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