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should not be published and is not precedent except under the limited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.
3