                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                      November 22, 2005

                             _______________________               Charles R. Fulbruge III
                                                                           Clerk
                                   No. 03-41073
                             _______________________

                         UNITED STATES OF AMERICA,
                                                         Plaintiff-Appellee,

                                      versus

                             LEE ROY COLUNGA-AMBRIZ,


                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. M-03-CR-282-1
_________________________________________________________________

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

              In United States v. Colunga-Ambriz, No. 03-41073 (May 18,

2004), this court affirmed Lee Roy Colunga-Ambriz’s conviction and

sentence for carjacking in violation of 18 U.S.C. § 2119.               Colunga-

Ambriz then filed a petition for writ of certiorari, for the first

time challenging his sentence under United States v. Booker, 125 S.

Ct. 738 (2005). The Supreme Court vacated and remanded for further

consideration in light of Booker.              See Colunga-Ambriz v. United

States,     125   S.   Ct.   1368   (2005).     We   requested   and    received



      *
       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should not be published and is not precedent except under the limited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.
supplemental letter briefs addressing the impact of Booker.

                 Because Colunga-Ambriz raised a Booker-like challenge to

his sentence for the first time in his petition for writ of

certiorari,1 he must demonstrate “extraordinary circumstances” for

us to consider his Booker challenge.               United States v. Taylor, 409

F.3d 675, 676 (5th Cir. 2005).                  Because Colunga-Ambriz concedes

that he cannot meet even the plain error standard, “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.”                       See id.

at 677.

                 Colunga-Ambriz     identifies     no   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).                    He correctly

acknowledges that this court has rejected the argument that a

Booker error is a structural error or that such error is presumed

to be prejudicial.         See Mares, 402 F.3d at 520-22; United States v.

Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), cert. denied, 124

S. Ct. 194 (2005).              He desires to preserve these arguments for


       1
        Colunga-Ambriz does not contend that his challenge before
this court——that the district court erred by upwardly departing——is
sufficient to preserve Booker error. Additionally, he admits that
he did not make a “Blakely- or Booker-type” objection in the
district court.

                                            2
further review.

              Because nothing in the Supreme Court's Booker decision

requires us to change our prior decision in this case, we adhere to

our   prior    determination   and   therefore    reinstate   our   judgment

AFFIRMING Colunga-Ambriz’s conviction and sentence.

                                                 AFFIRMED.




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