                                                                 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. 04-10185
                             _______________________

                         UNITED STATES OF AMERICA,
                                                           Plaintiff-Appellee,

                                     versus

                                ELBERT ALAN HALE,


                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 4:03-CR-65-ALL-A
_________________________________________________________________

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

              This   court    affirmed    the   judgment   of   conviction     and

sentence of Elbert Alan Hale.            United States v. Hale, No. 04-10185

(5th Cir. Jan. 10, 2005).         The Supreme Court vacated and remanded

for further consideration in light of United States v. Booker,

125 S. Ct. 738 (2005).         See Hale v. United States, 125 S. Ct. 2309

(2005).       We requested and received supplemental letter briefs

addressing the impact of Booker.

              At trial and on direct appeal, Hale objected to the



      *
       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should not be published and is not precedent except under the limited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.
imposition of a two-level enhancement for obstruction of justice,

contending only that the enhancement was improper under the factual

circumstances presented to the district court.    At no time until

his petition for certiorari did Hale object on either of the

grounds addressed in Booker, i.e., (i) a Sixth Amendment violation

resulting from an enhancement of a sentence based on facts (other

than a prior conviction) found by the sentencing judge, which were

not admitted by the defendant or found by the jury; or (ii) that

the Sentencing Guidelines were unconstitutional because they were

mandatory and not advisory. Absent extraordinary circumstances, we

will not consider Booker issues raised for the first time in a

petition for certiorari.   United States v. Taylor, 409 F.3d 675,

676 (5th Cir. 2005).

          However, even if we were to review for plain error, Hale

could not satisfy his burden of proving reversible plain error on

the basis that his sentence was applied under an unconstitutional

mandatory sentencing scheme because there is nothing in the record

to suggest that the district court would have sentenced Hale

differently under an advisory scheme.   See United States v. Mares,

402 F.3d 511, 521 (5th Cir. 2005), cert. denied, 126 S. Ct. 43

(2005).   To satisfy his burden, Hale incorrectly points to three

things: 1) the fact that the sentencing judge assessed a sentence

at the bottom of the guideline imprisonment range; 2) the fact

that, absent the Booker error, the guideline imprisonment range

would have been below the 63 month sentence imposed; and 3) the

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fact that the district court explained that although it had “made

the right ruling” regarding the enhancement, it would consider

Hale’s arguments against the imposition of the enhancement to

sentence Hale at the bottom of the guidelines.

          We find these arguments unavailing.       The mere fact that

Hale was sentenced at the bottom of the guidelines is probative,

but not sufficient, to demonstrate prejudice. See United States v.

Rodriguez-Gutierrez, No. 04-30451, slip op. at 8 (5th Cir. Oct. 5,

2005); United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.

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

2005).   Further, district courts must correctly calculate the

applicable Guideline range even in a post-Booker regime.           See

United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.

2005).    A   single    remark   indicating   the   district   court’s

consideration of all the evidence before it is hardly sufficient

for Hale to satisfy his burden of identifying 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).

           Thus, because Hale cannot even show plain error, it is

clear that this case does not present extraordinary circumstances

warranting our review.    We also note that this court has rejected

Hale’s due process and ex post facto challenges. See United States

v. Scroggins, 411 F.3d 572, 575-76(5th Cir. 2005). Because nothing

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in the Supreme Court's Booker decision requires us to change our

prior affirmance in this case, we adhere to our prior determination

and therefore reinstate our judgment AFFIRMING Hale’s conviction

and sentence.

                                    AFFIRMED.




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