United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 13, 2005
Charles R. Fulbruge III
Clerk
No. 03-40837
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR RUBIO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-02-CR-351-1)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
This court affirmed Hector Rubio’s conviction for possession
with intent to distribute in excess of 1,000 kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and
his 135-month sentence. United States v. Rubio, 03-40837, 2004 WL
886339 (5th Cir. 27 April 2004). The Supreme Court granted Rubio’s
petition for writ of certiorari and for leave to proceed in forma
pauperis (IFP); vacated our previous judgment; and remanded the
*
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this opinion should not be published and is not precedent except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.
case for further consideration in the light of United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). Rubio v. United
States, 125 S. Ct. 1005 (2005). We requested, and received,
supplemental briefs addressing the impact of Booker. Having
reconsidered our decision pursuant to the Supreme Court’s
instructions, we reinstate our judgment affirming the conviction
and sentence.
For the first time in his petition for writ of certiorari,
Rubio challenged the constitutionality of his sentence, based on
the then-recent holding in Blakely v. Washington, 542 U.S. ____,
124 S. Ct. 2531 (2004), because he was sentenced based on a drug
quantity neither pleaded to, nor found by, a jury. 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, ___ F.3d ___,
2005 WL 1155245, at * 1 (5th Cir. 17 May 2005).
Rubio has presented no evidence of extraordinary
circumstances. Furthermore, because Rubio did not raise his
Booker-claims in district court, any review would be only for plain
error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), petition for cert. filed, (U.S. 31 Mar. 2005) (No. 04-9517).
As Rubio concedes, his claims would fail the third prong of plain-
error review because he does not show any error affected his
substantial rights; he makes no “showing that the error ...
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affected the outcome of the district court proceedings”. Id. at
521 (quotation omitted). (Along this line, Rubio contends: the
district court committed “structural error” when it sentenced him
under a mandatory guidelines system; and prejudice to his
substantial rights should therefore be presumed. As he recognizes,
however, our court has rejected this contention as inconsistent
with Mares. See United States v. Malveaux, 03-41618, 2005 WL
827121, at n.9 (5th Cir. 11 April 2005) (unpublished). He raises
the Booker-issue only in order to preserve it for possible further
review by the Supreme Court.) In sum, because he fails plain-error
review, Rubio falls far short of showing the requisite
extraordinary circumstances.
AFFIRMED
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