United States v. Muniz-Tapia , 145 F. App'x 477 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2005
Charles R. Fulbruge III
Clerk
No. 04-40517
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MARIO ALBERTO MUNIZ-TAPIA
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-8-1
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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 the judgment of conviction and sentence
of Mario Alberto Muniz-Tapia. United States v. Muniz-Tapia,
No. 04-40517 (5th Cir. Dec. 17, 2004). The Supreme Court vacated
and remanded for further consideration in light of United States
v. Booker, 125 S. Ct. 738 (2005). See Muniz-Tapia v. United
*
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this opinion should not be published and is not precedent except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.
No. 04-40517
-2-
States, 125 S. Ct. 1960 (2005). We requested and received
supplemental letter briefs addressing the impact of Booker.
Muniz-Tapia argues that he is entitled to resentencing
because the district court sentenced him under a mandatory
application of the United States Sentencing Guidelines prohibited
by Booker. This court will not consider a Booker-related
challenge raised for the first time in a petition for certiorari
absent extraordinary circumstances. United States v. Taylor, 409
F.3d 675, 676 (5th Cir. 2005).
Muniz-Tapia argues that this court’s holding in Taylor is
not controlling because it is contrary to earlier precedent in
this circuit and that plain error is therefore the proper
standard of review in this case. He concedes, however, that he
cannot make the necessary showing of plain error that is required
by our precedent in United States v. Mares, 402 F.3d 511, 520 n.9
(5th Cir 2005), petition for cert. filed (Mar. 31, 2005) (No.
04-9517). Moreover, this court has rejected his 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; see also
United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),
petition for cert. filed (July 11, 2005) (No. 05-5297).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Muniz-Tapia’s conviction and
sentence.
AFFIRMED.