United States v. Perez , 134 F. App'x 701 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 14, 2005
Charles R. Fulbruge III
Clerk
03-11226
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SANTOS PEREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(No. 3:03-CR-235-ALL)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On a previous appeal, we affirmed Jose Santos Perez’s gulity
plea conviction and sentence for conspiracy to possess stolen mail
and possession of stolen mail. United States v. Perez, 03-11226,
2004 WL 1418778 (5th Cir. 22 June 2004) (unpublished). The Supreme
Court granted a writ of certiorari; vacated the judgment; and
remanded for further consideration in the light of United States v.
*
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this opinion should not be published and is not precedent except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.
Booker, 125 S. Ct. 738 (2005). Perez v. United States, 125 S. Ct.
1088 (2005).
Following his appeal to our court, Perez first objected to the
constitutionality of his sentence in a petition for rehearing.
Absent extraordinary circumstances, we will not consider issues
raised for the first time in a petition for rehearing. United
States v. Hernandez-Gonzalez, 405 F.3d 260, 261 (5th Cir. 2005.
Perez has not asserted that he presents the requisite extraordinary
circumstances.
In any event, even if we did not review for extraordinary
circumstances, Perez’s claims would be reviewed only for plain
error. Id. at 262. Under that standard, Perez must show, inter
alia, that any error affected his substantial rights. United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for
cert. filed, (U.S. 31 A.K. Marsh. 2005) (No. 04-9517). To meet this
burden, Perez must demonstrate the result of his proceeding would
have likely been significantly different under an advisory, as
opposed to mandatory, sentencing regime. Id. at 521. Perez admits
that he cannot meet this burden. (For purposes of possible review
by the Supreme Court, he maintains the Mares standard is
erroneous.) Because Perez cannot show reversible plain error, he
cannot show the requisite extraordinary circumstances.
Perez also contends for the first time that due process and ex
post facto concerns require us to vacate and remand to district
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court for re-sentencing. Our court has previously rejected both of
these contentions. United States v. Taylor, ___ F.3d ___, 2005 WL
1155245, at *1 n.1 (5th Cir. 17 May 2005). Accordingly, we
reinstate our judgment affirming Perez’s conviction and sentence.
AFFIRMED
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