                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                       May 16, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                 No. 03-10931
                               Summary Calendar



      UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

              versus


      PAUL MILLS,

                                               Defendant-Appellant.



              Appeal from the United States District Court
                   for the Northern District of Texas
                            3:01-CR-177-20-H


          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARWOOD, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

      This case, in which we previously affirmed Mills’s sentence

following resentencing, United States v. Mills, No. 03-10931, 5th

Cir., May 26, 2004 (per curiam) (unpublished), is again before us

on remand from the Supreme Court.         The Supreme Court, by its order

of   January    25,    2005,   granted   Mills’s   petition   for    writ    of

certiorari, vacated our judgment, and remanded the case to us “for


      *
      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opinion should not be published and is not precedent except under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.
further consideration in light of United States v. Booker, 543 U.S.

___, 125 S.Ct. 738.” Mills v. United States, 125 S.Ct. 1115 (2005).

At our request, the parties have submitted supplemental briefs

following the Supreme Court’s January 25, 2005 remand order.

     Following a jury trial, Mills in January 2002 was found guilty

of conspiring to manufacture and possess with intent to distribute

“in excess of five hundred (500) Grams or more of a mixture or

substance containing a detectable amount of methamphetamine” in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).    In April 2002,

Mills was sentenced to 360 months’ confinement, to be followed by

five-years’ supervised release.       The PSR calculated the base

offense level – computed on the basis of some 612 Kilograms of

methamphetamine – as 38.   U.S.S.G. § 2D1.1(c)(1).1   The PSR added

six levels under U.S.S.G. § 2D1.1(b)(5)(C) because the offense

created a substantial risk of harm to the life of a minor.     This

produced a total base offense level of 43 (actually 44, but under

note 2 to the U.S.S.G. Sentencing Table, any base offense level

over 43 is considered as being 43).   The PSR calculated that Mills

had three criminal history points, producing a criminal history

category of II. This produced a guideline sentencing range of life


     1
        U.S.S.G. § 2D1.1(c)(1) provides a base offense level of 38
for “15 KG or more of Methamphetamine.” A base offense level of 32
is provided for “at least 500 G but less than 1.5 KG of
Methamphetamine.”    21 U.S.C. § 841(b)(1)(A)(viii) provides for
imprisonment of “not . . . less than 10 years or more than life”
for a § 841(a) offense involving “500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine.”

                                 2
imprisonment.        Mills made various objections to the PSR, including

objections related to drug quantity, criminal history category and

the six level enhancement under section 2D1.1(b)(5)(C).               At the

April 2002 sentencing hearing the district court reduced Mills’s

criminal history category to I, finding that category II over-

represented the seriousness of his criminal history.              U.S.S.G. §

4A1.3.      The district court also, applying Koon v. United States,

116 S.Ct. 2035 (1996), because the case “brings in an element which

was   not    thoroughly    considered   by    the   Sentencing   Commission,”

departed downward, reducing the base offense level from 43 to 41,

but rejected Mills’s request that the departure be greater than

that.     The result was a guideline sentencing range of 324 to 405

months.     Before the district court Mills raised no Booker related

or Sixth Amendment issue.        The district court sentenced Mills to

360 months’ imprisonment.

      Mills appealed to this court.          He raised no Booker related or

Sixth Amendment issue.        He did complain, inter alia, that the six

level enhancement under U.S.S.G. § 2D1.1(b)(5)(C) was improper. In

our June 16, 2003 opinion we agreed with that contention, though we

observed      that    “§   2D1.1(b)(5)(B)’s     three    level    enhancement

[methamphetamine manufacture creating a substantial risk of harm to

human life other than a life of a minor or incompetent] would have

been sustainable under these factual circumstances.” United States

v. Simpson [and Mills], 334 F.3d 453, 459 (5th Cir. 2003).                 We


                                        3
rejected   all   Mills’s   other    contentions,    and   vacated   Mills’s

sentence and remanded for resentencing.       Id.

     Mills was resentenced pursuant to our mandate in September

2003.    A supplemental PSR was prepared.     It again calculated a 38

base offense level determined on quantity; pursuant to our June

2003 opinion, it recommended a three level enhancement under

section 2D1.1(b)(5)(B), instead of a six level enhancement under

section 2D1.1(b)(5)(C); it calculated a criminal history category

of II, but noted the district court had previously reduced that to

I; and it noted the district court’s previous reduction of two base

offense levels under Koon.         The supplemental PSR noted that all

this produced a net total base offense level of 39, a criminal

history category of I, and resulting guideline range of 262 to 327

months.    Mills argued against the three level enhancement under

section 2D1.1(b)(5)(B) and also that the quantity was overstated.2

Mills raised no Booker related or Sixth Amendment issues at his

resentencing. The district court, following the supplemental PSR’s

calculations, employed a guideline range of 262 to 327 months and

sentenced Mills to 290 months’ imprisonment.

     Mills again appealed to this court, contending only that there

was no specific evidence or information in the PSR sufficient to

support the three level enhancement under section 2D1.1(b)(5)(B).



     2
         He also argued that the previous two level downward
departure and criminal history category I rulings be maintained.

                                     4
We rejected this contention and affirmed his sentence (as imposed

on resentencing) in our May 26, 2004 opinion.                Mills raised no

Booker related or Sixth Amendment related issue in this court.

      Mills, in his August 2004 petition for certiorari, raised for

the first time the complaint that his sentence was enhanced under

the guidelines on the basis of facts not alleged in the indictment

or   found   by   the   jury.      The    government’s   response,   filed   in

September 2004, was pro forma, merely asserting that “the petition

for a writ of certiorari should be held pending this Court’s

decisions in Booker and Fanfan, and then disposed of as appropriate

in light of the decisions in those cases.”

      Having reconsidered our May 26, 2004 decision in light of

Booker pursuant to the Supreme Court’s instructions, we reinstate

our prior judgment affirming Mills’s sentence on his appeal from

his resentencing.

      There was, as it is now plain, error in sentencing Mills under

a mandatory guideline system on the basis of facts (other than one

or more prior convictions) not admitted by him or found by the

jury.        However,   we      have     held   that,   absent   extraordinary

circumstances, we will not consider a Booker related or Sixth

Amendment claim which was not timely raised in this court.              United

States v. Taylor, No. 03-10167, 5th Cir. May 17, 2005; United

States v. Hernandez-Gonzalez, No. 04-40923, 2005 WL 724636 (5th

Cir. March 30, 2005) (raised for first time in petition for


                                          5
rehearing).   See also United States v. Sutherland, 428 F.2d 1152,

1158 (5th Cir. 1970); United States v. Ardley, 273 F.3d 991 (11th

Cir. 2001) (en banc).

     There are no extraordinary circumstances here. For purpose of

the prejudice prong of “plain error” review under FED. R. CRIM. P.

52(b), the appellant must demonstrate prejudice, which, in the

context of the present Booker error, means that he must demonstrate

a substantial likelihood that the sentencing judge would have given

a lower sentence if he had treated the guidelines as advisory

rather than mandatory.    See, e.g., Taylor; Hernandez-Gonzalez;

United States v. Mares, 402 F.3d 511, 521-22 (5th Cir. 2005); pet.

for cert. filed, Mar. 31, 2005 (No. 04-9517); United States v.

Holmes, No. 03-41738 (5th Cir. Apr. 6, 2005), slip op. 2160.   Here,

as noted, both at the original sentencing and at the resentencing

the district court sentenced Mills in the approximate middle of the

calculated guideline range (original sentence of 360 months on

calculated guideline range of 324 to 405 months; resentence of 290

months on calculated guideline range of 262 to 327 months).     Nor

does anything else in the record point to a contrary conclusion.

Contrary to Mills’s post-remand contention in this court, the

district court’s remarks in connection with its reduction of the

criminal history category from II to I and its two level Koon

downward departure in the base offense level do not indicate




                                 6
otherwise.3

     Accordingly, we conclude that nothing in Booker requires us to

change our May 26, 2004 affirmance, and we therefore reinstate our

judgment affirming Mills’s sentence as imposed on his resentencing.




     3
        There is nothing to suggest that the district court would
have preferred to depart further but felt precluded from doing so
by the guidelines, and indeed the most logical inference is to the
contrary.

                                 7
