                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                      November 23, 2005

                         _______________________                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 04-30636
                         _______________________

                        UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,

                                   versus

                        CALVIN W. PENNYWELL, JR.,


                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
              for the Western District of Louisiana,
                     USDC No. 5:03-CR-50124-1
_________________________________________________________________

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

              In United States v. Pennywell, No. 04-30636 (Jan. 7,

2005), this court affirmed Calvin W. Pennywell’s conviction for

possession with intent to distribute five grams or more of cocaine

base, in violation of 18 U.S.C. § 841(a)(1), and possession of

firearms in relation to drug trafficking, in violation of 21 U.S.C.

§   924(c)(1).      Pennywell    then   filed   a   petition   for    writ    of

certiorari, for the first time challenging his sentence under

United States v. Booker, 125 S. Ct. 738 (2005).           The Supreme Court



      *
       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should not be published and is not precedent except under the limited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.
vacated and remanded for further consideration in light of Booker.

See Pennywell v. United States, 125 S. Ct. 2278 (2005).                     We

requested and received supplemental letter briefs addressing the

impact of Booker.

             Because Pennywell raised a Booker-like challenge to his

sentence for the first time in his petition for writ of certiorari,

he   must    demonstrate   “extraordinary   circumstances”      for    us   to

consider his Booker challenge.       United States v. Taylor, 409 F.3d

675, 676 (5th Cir. 2005).         Because Pennywell concedes that he

cannot meet even the Fifth Circuit’s plain error standard, “it is

obvious that the much more demanding standard for extraordinary

circumstances, warranting review of an issue raised for the first

time in a petition for certiorari, cannot be satisfied.”              See id.

at 677.

             Pennywell 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).      He 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; 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 these arguments for further review.



                                     2
              Because nothing in the Supreme Court's Booker decision

requires us to change our prior decision in this case, we adhere to

our   prior    determination   and   therefore    reinstate   our   judgment

AFFIRMING Pennywell’s conviction and sentence.

                                                 AFFIRMED.




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