                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 22, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40150
                           Summary Calendar



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

versus

JERRY DECKARD,

                                                Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                             (9:02-CR-41-1)
                          --------------------


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     The captioned case is before us on remand from the Supreme

Court of the United States in the wake of its opinion in United

States v. Booker.1     On remand, we have reviewed the supplemental

filings of the parties, reconsidered the facts and applicable law

in light of Booker and its progeny in both the Supreme Court and


     *
       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this opinion should not be published and is not precedent except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.
     1
         __ U.S. ___ 125 S.Ct. 738 (2005).
this circuit, and conclude that, when we review Deckard’s post-

Booker challenge under the applicable plain error standard, he has

failed to demonstrate entitlement to have his sentence vacated and

the case remanded for resentencing.

      The government is likely correct that, as Deckard failed to

mount    a     Sixth     Amendment   challenge     to    the    district     court’s

application of the Sentencing Guidelines, and raising it for the

first time in his petition for certiorari, we should not consider

it.     We nevertheless do so, albeit under plain error.                     We are

satisfied that if any such error exists, it would be harmless,

given the district court’s original sentencing.                   Even though the

Guidelines were treated as mandatory, the sentence (which Deckard

did not directly appeal) was correctly calculated and was facially

reasonable.            More   importantly,     Deckard   has     not   and   cannot

demonstrate       any     likelihood     that,    were     we     to   remand   for

resentencing, the district court would impose a lesser sentence

when treating the Guidelines as advisory only.                     Thus any plain

error    was    clearly       harmless   and   Deckard’s       substantial   rights

unaffected by the sentence that we perceive as reasonable.

      Deckard’s conviction and sentence are, in all respects,

AFFIRMED.




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