United States v. Salas , 145 F. App'x 491 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 3, 2005
Charles R. Fulbruge III
Clerk
No. 03-20525
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO SALAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-149-3
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and sentence
of Roberto Salas. United States v. Salas, No. 03-20525 (5th Cir.
Feb. 18, 2004). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). See Salas v. United States, 125 S. Ct. 1111
(2005). We requested and received supplemental letter briefs
addressing the impact of Booker.
*
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this opinion should not be published and is not precedent except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. 03-20525
-2-
Salas argues that he is entitled to resentencing because the
district court erred under Booker in imposing his sentence under
the then mandatory United States Sentencing Guidelines held
unconstitutional in 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).
Salas concedes 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 he has not demonstrated plain error, “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.” Taylor, 405 F.3d at 677.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Salas’s conviction and sentence.
AFFIRMED.