United States v. Gomez-Trujillo

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 30, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-51047
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
OSCAR GOMEZ-TRUJILLO
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas, El Paso
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING and BARKSDALE, Circuit Judges.*
PER CURIAM:**
IT IS ORDERED that Plaintiff-Appellee’s motion to reinstate
prior affirmance of Defendant-Appellant’s conviction in lieu of
filing supplemental Booker brief is GRANTED. Defendant-Appellant
Oscar Gomez-Trujillo raised a Booker issue for the first time in
his petition for certiorari. Thus, as he recognizes, we will not
*
Judge Pickering was a member of the original panel but
retired from the Court on December 8, 2004 and, therefore did not
participate in this decision. This matter is being decided by a
quorum. 28 U.S.C. § 46(d).
**
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that this opinion should not be published and is not precedent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. 03-51047
-2-
consider his challenge absent extraordinary circumstances.
Because Gomez-Trujillo cannot meet the plain-error test, he
necessarily fails to meet the much more demanding standard for
“extraordinary circumstances.” United States v. Rodriguez-
Gutierrez, 428 F.3d 201 (5th Cir. 2005). Gomez-Trujillo’s
conviction and sentence are AFFIRMED.
IT IS FURTHER ORDERED that Plaintiff-Appellee’s alternative
motion to extend time to file Plaintiff-Appellee’s supplemental
brief until 14 days after denial of motion to reinstate prior
affirmance is DENIED as moot.