* 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this opinion should not be published and is not precedent except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

August 17, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-50014

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANNY RAY BISHOP,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-03-CR-105-1

--------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges. 

PER CURIAM:*

This court affirmed Danny Ray Bishop’s jury-trial conviction

for manufacturing methamphetamine and possession of

pseudoephedrine with intent to manufacture methamphetamine, and

his 168-month sentence. United States v. Bishop, No. 04-50014,

2004 WL 2913893 (5th Cir. Dec. 16, 2004). The Supreme Court

granted Bishop’s petition for a writ of certiorari, vacated our

previous judgment, and remanded the case for further

consideration in the light of United States v. Booker, 543 U.S.
No. 04-50014

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2

125 S. Ct. 738 (2005). Bishop v. United States, 125 S. Ct. 1937

(2005). We received supplemental briefs addressing Booker’s

impact, and Bishop’s motion to file a supplemental reply brief is

GRANTED. Having reconsidered our decision pursuant to the

Supreme Court’s instructions, we reinstate our judgment affirming

the conviction and sentence.

Our review of the full record, in light of Bishop’s

supplemental reply brief, convinces us that Bishop challenged the

constitutionality of his sentence on the principles of Booker for

the first time in his petition for writ of certiorari. Absent

extraordinary circumstances, we will not consider a defendant’s

Booker-related claims presented for the first time in a petition

for writ of certiorari. United States v. Taylor, 409 F.3d 675,

675 (2005). 

Bishop has presented no evidence of extraordinary

circumstances. Even if a showing of such circumstances were not

required, because Bishop did not raise his Booker claim in

district court, any review would be only for plain error. See

United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),

petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Bishop’s

claim fails the third prong of plain-error review because he does

not show any error affected his substantial rights. Id. at 521. 

That is, he makes no “showing that the error . . . affected the
No. 04-50014

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3

outcome of the district court proceedings.” Id. (quotation marks

omitted). 

Bishop contends that the district court committed

“structural error” when it sentenced him under a mandatory

guidelines system and that prejudice to his substantial rights

should be presumed. We have rejected this contention as

inconsistent with Mares. See United States v. Malveaux, 411 F.3d

558, 561 n.9 (5th Cir. 2005), petition for cert. filed (July 11,

2005) (No. 04-5297). Because Bishop fails plain-error review, he

also falls short of showing the “possibility of injustice so

grave as to warrant disregard of usual procedural rules,” which

is required to establish extraordinary circumstances. See United

States v. Ogle, __F.3d__, No. 03-60833, 2005 WL 1503538 (5th Cir.

June 27, 2005) (citation omitted). 

We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in

this case. We therefore affirm the conviction and sentence as

set by the trial court.

Bishop’s motion to file a supplemental reply brief is

granted. 

AFFIRMED; MOTION TO FILE SUPPLEMENTAL REPLY BRIEF GRANTED