                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                             FILED
                         __________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                          MAY 24, 2005
                                No. 04-11166
                                                       THOMAS K. KAHN
                            Non-Argument Calendar
                                                            CLERK
                         __________________________

                      D.C. Docket No. 03-00165-CR-1-006

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

MALCOLM PRITCHETT,

                                                   Defendant-Appellant.
                         __________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                        __________________________

                                  (May 24, 2005)

                     ON REMAND FROM THE
               SUPREME COURT OF THE UNITED STATES

Before BLACK, CARNES and PRYOR, Circuit Judges.

      Last year we affirmed Malcolm Pritchett’s sentence of 156 months

imprisonment for possession with intent to distribute cocaine. United States v.
Pritchett, No. 04-11166 (11th Cir. Nov. 16, 2004) (unpublished). The case is back

before us on remand from the Supreme Court for further consideration in light of

Booker v. United States, 543 U.S. __, 125 S. Ct. 738 (2005).

      As we noted in our prior opinion in this case, Pritchett did raise his

Apprendi/Blakely contention in his opening brief to this Court, but he failed to

preserve it in the district court. Accordingly, our review is only for plain error.

With commendable candor, Pritchett concedes in his post-remand supplemental

letter brief that no one knows if his sentence would have been different if the

sentencing guidelines had been applied in an advisory instead of mandatory

fashion: “If the district court judge in this case had the liberty of increasing or

decreasing Pritchett’s sentence above or below the guidelines range, he might

have given Pritchett a longer sentence, or he might have given him a shorter

sentence, or he might have given him the same sentence. The record provides no

reason to believe any result is more likely than the other.” Appellant’s Supp. Br.

at 13. That being so, this case is squarely controlled by our recent decision in

United States v. Rodriguez, 398 F.3d 1291, 1299-05 (11th Cir. 2005).

       Pritchett’s contention essentially is that we got it wrong in Rodriguez and

should instead have adopted in that case the position that Booker error is structural

so that reversal is required in every case of unpreserved error regardless of


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whether the defendant can show a reasonable probability of a different result if the

guidelines had been applied in an advisory way. He acknowledges that his

argument “is taken substantially from Judge Tjoflat’s dissent [from the denial of

rehearing en banc] in United States v. Rodriguez, ___ F.3d ___, 2005 WL 895174

(11th Cir. [Apr. 19,] 2005).” Appellant’s Supp. Br. at 5 n.1. That dissent was a

dissent, and the law of the circuit is established by the Rodriguez panel opinion,

which under the prior precedent rule we are required to follow.

      Accordingly, we reinstate our previous opinion in this case affirming the

Pritchett’s sentence.

      OPINION REINSTATED; AFFIRMED.




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