United States v. Romero , 169 F. App'x 826 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 23, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40106
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNESTO ROMERO,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:02-CR-105-1
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
This court affirmed Ernesto Romero’s conviction and sentence.
United States v. Romero, 111 Fed. Appx. 330 (5th Cir. 2004). The
Supreme Court vacated and remanded for further consideration in the
light of United States v. Booker, 125 S.Ct. 738 (2005). Bolding v.
United States, 125 S.Ct. 1349 (2005). We requested and received
supplemental letter briefs addressing the impact of Booker.
In his supplemental brief, Romero argues that the district
court’s application of mandatory sentencing guidelines was
*
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this opinion should not be published and is not precedent except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.
reversible plain error. Romero acknowledges that he did not raise
any Booker-related arguments before the district court or on direct
appeal. Instead, he raised the issue for the first time in his
amended petition for writ of certiorari. This court recently held
that, in the absence of extraordinary circumstances, the court will
not consider Booker-related arguments raised for the first time in
a petition for a writ of certiorari. United States v. Taylor, 409
F.3d 675, 676 (5th Cir. 2005).
Because Romero did not raise his Booker-related arguments in
the district court, we would have reviewed them for plain error had
he raised them for the first time on direct appeal. United States
v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S.Ct. 43(2005). There is no plain error because, as Romero concedes, there
is no evidence in the record indicating that the district court
would have imposed a lesser sentence under advisory sentencing
guidelines. Because Romero has not shown plain error, he cannot
satisfy “the much more demanding standard for extraordinary
circumstances, warranting review of an issue raised for the first
time in a petition for certiorari”. Taylor, 409 F.3d at 677.
Alternatively, Romero contends that application of the plain
error standard is inappropriate because it would have been futile
for him to have objected to application of the mandatory guidelines
in the light of Fifth Circuit precedent existing at the time of his
sentencing, or because the remedial portion of Booker was novel and
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unforeseeable at the time of his sentencing. As he acknowledges,
these arguments are foreclosed by this court’s decision in Mares.
Finally, Romero contends that the Booker error was structural
and that prejudice should be presumed. This contention is also
foreclosed by Mares. See United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005); United
States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert. denied,
126 S.Ct. 194 (2005).
For the foregoing reasons, we conclude that nothing in the
Supreme Court’s Booker decision requires us to change our prior
affirmance in this case. We therefore reinstate our judgment
affirming Romero’s conviction and sentence.
JUDGMENT REINSTATED.
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