                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              February 2, 2006
                        FOR THE FIFTH CIRCUIT
                        _____________________             Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-50978
                           Summary Calendar
                        _____________________

UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

                               versus

LEYUMBA WEBB,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
             for the Western District of Texas, Austin
                      USDC No. A-02-CR-301-ALL
_________________________________________________________________

                         ON REMAND FROM THE
                 SUPREME COURT OF THE UNITED STATES

Before JOLLY and WIENER, Circuit Judges.1

PER CURIAM:2

     This court affirmed Leyumba Webb’s conviction and sentence.

United States v. Webb, 96 Fed. Appx. 259 (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).         Webb v.

United States, 125 S.Ct. 1006 (2005).     At this court’s request,


     1
      Judge Pickering was a member of the original panel but
retired from the Court on December 8, 2004 and, therefore, did not
participate in this decision.
     2
      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this opinion should not be published and is not precedent except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.
Webb filed a supplemental letter brief addressing the impact of

Booker.    The Government filed a motion to reinstate our prior

affirmance of Webb’s conviction and sentence or, alternatively, to

extend the time to file its supplemental letter brief.

      In his supplemental brief, Webb argues that the district court

erred by sentencing him under mandatory sentencing guidelines and

by enhancing his sentence on the basis of facts not alleged in the

indictment and found by a jury.         He asserts that he preserved a

Booker claim by arguing during his sentencing hearing that the

court should depart downward because “courts have taken the liberty

of adjusting the [sic] downward when they see what could be just an

unreasonable application or some application of the sentencing

guidelines that aren’t rational.”       We disagree that this objection

was adequate to preserve a Booker claim.        A request for a downward

departure is not the equivalent of an objection to the application

of   mandatory   Sentencing   Guidelines   or   an   objection   on   Sixth

Amendment grounds. See United States v. Garcia-Rodriguez, 415 F.3d

452 (5th Cir. 2005) (district court had denied defendant’s request

for downward departure, but court reviewed Booker claim for plain

error).

      Webb concedes that he did not raise a Booker issue on direct

appeal, but instead did so in his “Supplemental Brief to 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

                                    2
writ of certiorari.   United States v. Taylor, 409 F.3d 675, 676

(5th Cir. 2005).

     Because Webb 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

Webb’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

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 Webb

was sentenced based on facts found by the judge but not by the jury

under mandatory Sentencing Guidelines.       See United States v.

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

     To satisfy the third prong of the plain error test, Webb 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).        Webb argues that the following

circumstances indicate that there is a “possibility” of a lower

sentence under advisory Guidelines:

                                3
     (1) the district court observed at sentencing that, “based on

a rather peculiar quirk in the guidelines which provide that if

someone has two or more convictions of a certain kind and is

convicted of a drug offense, then the guidelines classify him or

her as a career offender and the guidelines jump way up”;

     (2) the district court recognized the rather small quantity of

drugs at issue in this case -- just over three grams;

     (3) the district court noted that Webb was only 19 years old

when he was convicted of deadly conduct (one of the prior offenses

supporting the career offender enhancement)

     (4) the district court’s imposition of the lowest possible

sentence under the Guidelines indicates a willingness to impose an

even lower sentence under a non-mandatory interpretation of the

Guidelines;

     (5) the statutory directive to sentencing courts to avoid

unwarranted   sentencing   disparities,   18   U.S.C.   §   3553(a)(6),

indicates the possibility that his sentence would be less if the

court remanded for resentencing because the 1-100 quantity ration

of cocaine-base to cocaine powder in the Guidelines leads to

unwarranted sentencing disparity; and

     (6) the Sentencing Commission has recognized that the career

offender provision has a disparate impact on minority defendants

that is not justified by recidivism rates because it includes drug

trafficking crimes as criteria for its application.



                                  4
      Webb has not demonstrated “that the result would have likely

been different had the judge been sentencing under the Booker

advisory regime rather than the pre-Booker mandatory regime.”

Mares, 402 F.3d at 522.         See Creech, 408 F.3d at 272 (sentencing

judge’s explanations of mandatory nature of the Guidelines and

summary of sentencing law is not indicative of judge’s desire to

sentence differently under advisory Guidelines); United States v.

Bringier, 405 F.3d 310, 317-18 & n.4 (5th Cir.) (sentencing judge’s

acknowledgment that sentence was “harsh”, and fact that sentencing

judge imposed minimum sentence under guideline range is not an

“indication      that   the   judge   would   have   reached   a   different

conclusion under an advisory scheme”), cert. denied, 126 S.Ct. 264

(2005); see also United States v. Hernandez-Gonzalez, 405 F.3d 260,

262 (5th Cir.) (fact that defendant received minimum sentence under

Guidelines, and evidence that defendant suffered from alcohol abuse

problem that was responsible for much of his criminal history and

that he returned illegally to the United States to earn money for

his   family    in   Honduras   was   insufficient   to   demonstrate   that

sentencing judge would have imposed lower sentence under advisory

guidelines), cert. denied, 126 U.S. 202 (2005).

      Webb cannot show that his substantial rights were affected by

the Booker errors, and thus he cannot satisfy the plain error

standard.      It necessarily follows that he cannot satisfy “the much

more demanding standard for extraordinary circumstances, warranting



                                       5
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

affirmance in this case.     We therefore GRANT the Government’s

motion to reinstate our judgment affirming Webb’s conviction and

sentence, and DENY as unnecessary its alternative motion for an

extension of time to file its supplemental letter brief.

                                             JUDGMENT REINSTATED.




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