United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-10632
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DERIC DESHON CALTON
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CR-80-1-C
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Deric Deshon Calton.
United States v. Calton, No. 04-10632 (5th Cir. Dec. 16, 2004)
(unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125 S.
Ct. 738 (2005).
When the question whether the sentence was imposed legally
in light of the rule in Booker has been asserted for the first
*
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this opinion should not be published and is not precedent except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. 04-10632
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time on appeal, this court’s review is for plain error. See
United States v. Valenzuela-Quevedo, 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
No. 04-10632
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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 Calton’s conviction and
sentence.
AFFIRMED.