                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 30, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-10632
                          Conference Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

DERIC DESHON CALTON

                       Defendant - Appellant

                          --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 5:03-CR-80-1-C
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of Deric Deshon Calton.

United States v. Calton, No. 04-10632 (5th Cir. Dec. 16, 2004)

(unpublished).     The Supreme Court vacated and remanded for

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

Ct. 738 (2005).

     When the question whether the sentence was imposed legally

in light of the rule in Booker has been asserted for the first


     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-10632
                                 -2-

time on appeal, this court’s review is for plain error.      See

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th

Cir. 2005), petition for cert. filed (July 25, 2005) (No.

05-5556); United States v. Mares, 402 F.3d 511, 520 (5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

In this case, a higher standard must be met because Calton first

raised the Booker issue in his petition for certiorari.      See

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

Taylor held that because a defendant had not demonstrated plain

error, “it is obvious that the much more demanding standard for

extraordinary circumstances warranting review of an issue raised

for the first time in a petition for certiorari, cannot be

satisfied.”    Taylor, 405 F.3d at 677.    As will be shown below,

Calton cannot show any extraordinary circumstances because he

cannot demonstrate plain error.

     After Booker, “[i]t is clear that application of the

Guidelines in their mandatory form constitutes error that is

plain.”    Valenzuela-Quevedo, 407 F.3d at 733.    To satisfy the

third prong of the plain-error test in light of Booker, a

defendant is required to demonstrate “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, 395 (5th Cir.

2005).    Calton admits that he cannot make a particularized
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                                -3-

showing of an effect on his substantial rights or that the record

indicates in any way that the district court would have imposed a

lower sentence under an advisory sentencing scheme.   Accordingly,

there is no basis for concluding that the district court would

have imposed a lower sentence under an advisory sentencing

regime.   See Mares, 402 F.3d at 522.

     We conclude that nothing in the Supreme Court’s Booker

decision requires us to change our prior affirmance in this case.

We reinstate our judgment affirming Calton’s conviction and

sentence.

     AFFIRMED.
