                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  August 8, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-11116
                           Summary Calendar



UNITED STATES OF AMERICA

                  Plaintiff - Appellee

v.

LARRY DEAN GANN,

                  Defendant - Appellant

                          --------------------
             Appeal from the United States District Court
                   for the Northern District of Texas
                               (02-CR-13)
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     The Supreme Court vacated the judgment in this case and

remanded it to this Court to reconsider in light of United States

v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).     In supplemental

briefing, Gann argues that resentencing is required under Booker

because the district court sentenced him under a mandatory

sentencing scheme.     For the following reasons, we reject Gann’s

argument and affirm the judgment of the district court.


     *
       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this opinion should not be published and is not precedent except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. 03-11116
                                -2-

     Gann admits that he did not challenge the district court’s

use of judicial fact-finding during sentencing until his petition

for panel rehearing before this Court.    Because he has not shown

extraordinary circumstances to cure his failure to raise this

issue in district court and on direct appeal, we need not

consider his claim here.   United States v. Ogle, ___ F.3d ___,

No. 03-60833, 2005 WL 1503538, *1 (5th Cir. Jun 27, 2005)

(holding that an argument not raised in appellant’s original

brief is waived); United States v. Taylor, 409 F.3d 675, 676 (5th

Cir. 2005).

     Even if Gann had shown extraordinary circumstances such that

his claim could be considered here, review of his claim is

limited to a review for plain error. United States v. Mares, 402

F.3d 511, 520-22 (5th Cir.2005).    Thus, Gann must show that there

is (1) error, (2) that is plain, and (3) that affects substantial

rights where appellant did not raise a challenge to his sentence

before the district court. Id.     In light of Booker, we agree that

the use of a mandatory sentencing scheme is clear and obvious

error.   However, Gann’s claim fails because he has not shown that

the error affected his substantial rights.     Gann acknowledges

that there is nothing in the record to show, and Gann has

otherwise failed to show, that the district court would have

imposed a lower sentence under an advisory sentencing scheme

rather than a mandatory one.     Id. at 522.

     Accordingly, the judgment of the district court is AFFIRMED.
