                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                         SEPTEMBER 30, 2005
                             No. 05-10690                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 04-80114-CR-DMM

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                  versus

BENJAMIN H. MCCALLUM,

                                                        Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________


                           (September 30, 2005)

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Benjamin H. McCallum was sentenced to 51 months imprisonment for bank
robbery and attempted bank robbery, both in violation of 18 U.S.C. § 2113(a). On

appeal, McCallum contends that the district court committed clear error under

United States v. Booker, 543 U.S.       , 125 S. Ct. 738 (2005), by sentencing him

under the mandatory scheme of the sentencing guidelines.

      Notwithstanding his assertions to the contrary, McCallum failed to preserve

his Booker claim for appeal. The record indicates that the district court solicited

objections to the sentence imposed and that McCallum stated that he did not have

any objections. Furthermore, during the plea hearing, the court recognized there

was “a lot of uncertainty” concerning the constitutionality of the sentencing

guidelines. The court asked McCallum whether his attorney had tried to explain

the circumstances to him and McCallum replied that he had. Despite virtually

being prompted, McCallum did not object to the constitutionality of his guideline

sentence. Instead, seven days later he filed a Fed. R. Crim. P. 35(a) motion to

correct sentence. McCallum now contends that his Rule 35(a) motion preserved

the error for appeal and that he is entitled to re-sentencing. Rule 35(a) motions are

reserved for “arithmetical, technical, or other clear error.” See Fed. R. Crim. P.

35(a). Since Booker error does not fall into any of these categories, McCallum’s

claim was not preserved.

      McCallum does not contend that he is entitled to re-sentencing under the



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plain error standard that actually applies to cases of unpreserved error, such as this

one, see United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert.

denied, 125 S. Ct. 2935 (2005), and we can understand the absence of this

argument. McCallum cannot meet the third prong of the plain error standard,

because he cannot show a reasonable probability of a different result if he had been

sentenced under an advisory regime. See id. at 1299-1300. In any event,

McCallum does not argue that. For these reasons, we affirm his sentence.

      AFFIRMED.




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