                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                       March 28, 2006
                            FOR THE FIFTH CIRCUIT
                            _____________________                 Charles R. Fulbruge III
                                                                          Clerk
                                 No. 04-40286
                            _____________________

UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                     versus

NICKIE ANGELO BATTEN,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
            for the Eastern District of Texas, Beaumont
                      USDC No. 1:03-CR-134-ALL
_________________________________________________________________

                              ON REMAND FROM
                  THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.

PER CURIAM:1

     This court affirmed Nickie Angelo Batten’s conviction and

sentence.    United States v. Batten, 112 Fed. Appx. 345 (5th Cir.

2004).      The   Supreme    Court   vacated   and   remanded    for    further

consideration in the light of United States v. Booker, 125 S.Ct.

738 (2005).       Batten v. United States, 543 U.S. 1182 (2005).               We

requested and received supplemental letter briefs addressing the

impact of Booker.



     1
      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this opinion should not be published and is not precedent except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.
     In his supplemental brief, Batten argues that the district

court    erred   by   sentencing   him   under   a   mandatory   sentencing

guidelines range greater than the range authorized solely by his

own admissions, based upon the district court’s findings made by

only a preponderance of the evidence.2       Batten concedes that he did

not raise a Booker claim on direct appeal, but instead did so for

the first time in his petition for writ of certiorari.           This court

has held that, in the absence of extraordinary circumstances, the

court will not consider Booker-related arguments raised for the

first time in a petition for a writ of certiorari.          United States

v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).

     Because Batten did not raise his Booker-related arguments in

the district court, we would have reviewed them for plain error had

he raised them for the first time on direct appeal.          United States

v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S.Ct. 43

(2005). Under the plain error standard, we may correct an error in

Batten’s sentence only if he demonstrates that “there is (1) error,

(2) that is plain, and (3) that affects substantial rights.          If all

three conditions are met an appellate court may then exercise its


     2
      Batten acknowledges that the following contentions are
foreclosed by our precedent, but raises them to preserve them for
further review by the Supreme Court: (1) that the Booker error was
structural or presumptively prejudicial; (2) that this court’s
interpretation of the burden of proof required to prove sentencing
enhancements is incorrect; and (3) that this court should follow
other circuits that have decided to remand all cases for
resentencing regardless of whether Booker error was preserved in
the district court.

                                     2
discretion to notice a forfeited error but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (internal citations and quotation marks

omitted).   The first two prongs are satisfied here, because Batten

was sentenced pursuant to a mandatory sentencing guidelines range

based on facts found by the judge but not admitted by him.       See

United States v. Creech, 408 F.3d 264, 271-72 (5th Cir. 2005).

     To satisfy the third prong of the plain error test, Batten

must show, “with a probability sufficient to undermine confidence

in the outcome, that if the judge had sentenced him under an

advisory sentencing regime rather than a mandatory one, he would

have received a lesser sentence.”     United States v. Infante, 404

F.3d 376, 394-95 (5th Cir. 2005).    Although Batten argues that the

record in this case shows at least a reasonable probability that,

but for the error, the outcome of the sentencing would have been

different, he concedes that the record contains no statements by

the district court reflecting an inclination to impose a lesser

sentence if the case were remanded.

     Because Batten has not shown plain error, he cannot satisfy

“the much more demanding standard for extraordinary circumstances,

warranting review of an issue raised for the first time in a

petition for certiorari”.   Taylor, 409 F.3d at 677.

     For the foregoing reasons, we conclude that nothing in the

Supreme Court’s Booker decision requires us to change our prior



                                 3
affirmance in this case.    We therefore reinstate our judgment

affirming Batten’s conviction and sentence.

                                              JUDGMENT REINSTATED.




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