UNITED STATES of America, Plaintiff-Appellee v. Deric Deshon CALTON, Defendant-Appellant, 149 F. App'x 284

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: This court affirmed the sentence of Deric Deshon Calton. United States v. Calton, 117 Fed.Appx. 982 (5th Cir.2004) (unpublished). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). When the question whether the sentence was imposed legally in light of the rule in Booker has been asserted for the first time on appeal, this court’s review is for plain error. See United States v.

ValenzuelaQuevedo, 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 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 Cal-ton’s conviction and sentence. AFFIRMED. 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 Cm. R. 47.5.4.