United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-30636
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN W. PENNYWELL, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana,
USDC No. 5:03-CR-50124-1
_________________________________________________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
In United States v. Pennywell, No. 04-30636 (Jan. 7,
2005), this court affirmed Calvin W. Pennywell’s conviction for
possession with intent to distribute five grams or more of cocaine
base, in violation of 18 U.S.C. § 841(a)(1), and possession of
firearms in relation to drug trafficking, in violation of 21 U.S.C.
§ 924(c)(1). Pennywell 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
*
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should not be published and is not precedent except under the limited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.
vacated and remanded for further consideration in light of Booker.
See Pennywell v. United States, 125 S. Ct. 2278 (2005). We
requested and received supplemental letter briefs addressing the
impact of Booker.
Because Pennywell raised a Booker-like challenge to his
sentence for the first time in his petition for writ of certiorari,
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 Pennywell concedes that he
cannot meet even the Fifth Circuit’s 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.
Pennywell 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 further review.
2
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 Pennywell’s conviction and sentence.
AFFIRMED.
3