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should not be published and is not precedent except under the limited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

United States Court of Appeals

Fifth Circuit

FILED

November 22, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

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. ColungaAmbriz 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
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

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
3

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.