[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
__________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 24, 2005
No. 04-11166
THOMAS K. KAHN
Non-Argument Calendar
CLERK
__________________________
D.C. Docket No. 03-00165-CR-1-006
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MALCOLM PRITCHETT,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Alabama
__________________________
(May 24, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before BLACK, CARNES and PRYOR, Circuit Judges.
Last year we affirmed Malcolm Pritchett’s sentence of 156 months
imprisonment for possession with intent to distribute cocaine. United States v.
Pritchett, No. 04-11166 (11th Cir. Nov. 16, 2004) (unpublished). The case is back
before us on remand from the Supreme Court for further consideration in light of
Booker v. United States, 543 U.S. __, 125 S. Ct. 738 (2005).
As we noted in our prior opinion in this case, Pritchett did raise his
Apprendi/Blakely contention in his opening brief to this Court, but he failed to
preserve it in the district court. Accordingly, our review is only for plain error.
With commendable candor, Pritchett concedes in his post-remand supplemental
letter brief that no one knows if his sentence would have been different if the
sentencing guidelines had been applied in an advisory instead of mandatory
fashion: “If the district court judge in this case had the liberty of increasing or
decreasing Pritchett’s sentence above or below the guidelines range, he might
have given Pritchett a longer sentence, or he might have given him a shorter
sentence, or he might have given him the same sentence. The record provides no
reason to believe any result is more likely than the other.” Appellant’s Supp. Br.
at 13. That being so, this case is squarely controlled by our recent decision in
United States v. Rodriguez, 398 F.3d 1291, 1299-05 (11th Cir. 2005).
Pritchett’s contention essentially is that we got it wrong in Rodriguez and
should instead have adopted in that case the position that Booker error is structural
so that reversal is required in every case of unpreserved error regardless of
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whether the defendant can show a reasonable probability of a different result if the
guidelines had been applied in an advisory way. He acknowledges that his
argument “is taken substantially from Judge Tjoflat’s dissent [from the denial of
rehearing en banc] in United States v. Rodriguez, ___ F.3d ___, 2005 WL 895174
(11th Cir. [Apr. 19,] 2005).” Appellant’s Supp. Br. at 5 n.1. That dissent was a
dissent, and the law of the circuit is established by the Rodriguez panel opinion,
which under the prior precedent rule we are required to follow.
Accordingly, we reinstate our previous opinion in this case affirming the
Pritchett’s sentence.
OPINION REINSTATED; AFFIRMED.
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