United States v. Marana , 204 F. App'x 485 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 8, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_____________________
No. 04-20156
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROSA MAIGUALIDA MARANA,
Defendant-Appellant.
__________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CR-333-1
__________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
In our previous opinion in this case, we affirmed Appellant
Marana’s conviction and sentence. See United States v. Marana,
No. 04-20156, 111 Fed. Appx. 761 (5th Cir. 2004) (per curiam)
(unpublished). Following our judgment, the defendant timely
*
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this opinion should not be published and is not precedent except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.
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petitioned the Supreme Court for a writ of certiorari alleging
for the first time in her petition that the use of the mandatory
Sentencing Guidelines violated her Sixth Amendment rights. The
Supreme Court granted the writ, vacated defendant’s sentence, and
remanded to this court for consideration of defendant’s sentence
in light of its decision in United States v. Booker, 543 U.S. 220
(2005). We now reconsider the matter and decide to reinstate our
previous judgment affirming Marana’s conviction and sentence.
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, 676 (5th Cir. 2005). Had Marana raised her Booker-
related claims in her initial appellate brief, this court would
have reviewed the argument for plain error. Id. at 677. Marana
concedes that she cannot show that any error affected her
substantial rights, as is required under our circuit’s plain
error review. See United States v. Mares, 402 F.3d 511, 521-22
(5th Cir. 2005). Because Marana fails plain error review, she
also fails to show extraordinary circumstances, which is a more
demanding standard. Taylor, 409 F.3d at 677.
Marana's concedes that her structural-error and presumptive-
prejudice contentions are also foreclosed. See United States v.
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Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005); United States
v. Malveaux, 411 F.3d 558, 561 & n.9 (5th Cir. 2005).
For the reasons stated above, our prior disposition remains
in effect and we REINSTATE OUR EARLIER JUDGMENT affirming
Marana’s conviction and sentence.
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