United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS
F I L E D
FIFTH CIRCUIT June 15, 2005
Charles R. Fulbruge III
03-40975 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO SANTILLANA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-03-CR-126-1)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, Circuit Judge, and LYNN, District Judge.*,**
PER CURIAM:***
This court affirmed Santiago Santillana’s guilty plea
conviction and sentence for conspiring to transport and harbor
illegal aliens. United States v. Santillana, 03-40975, 2004 WL
1950438 (5th Cir. 3 Sept. 2004) (unpublished). The Supreme Court
*
District Judge for the Northern District of Texas, sitting by
designation.
**
This appeal is being decided by a quorum due to the
retirement of Judge Pickering. 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this opinion should not be published and is not precedent except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.
granted Santillana’s petition for writ of certiorari and for leave
to proceed in forma pauperis (IFP); vacated our previous judgment;
and remanded the case for further consideration in the light of
United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).
Santillana v. United States, 125 S. Ct. 1089 (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,
Santillana challenged the constitutionality of his sentence, based
on the then-recent holding in Blakely v. Washington, 542 U.S. ____,
124 S. Ct. 2531 (2004). 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).
Santillana has presented no evidence of the requisite
extraordinary circumstances. Even if such circumstances were not
required, any review would be only for plain error because he did
not raise his Booker-claims in district court. 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). Santillana’s claims
would fail the third prong of plain-error review because he does
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not show any error affected his substantial rights; he makes no
“showing that the error ... affected the outcome of the district
court proceedings”. Id. at 521 (quotation omitted). As Santillana
concedes, the district court did not make any statement that could
support an inference it would have imposed a lesser sentence if the
guidelines has not been mandatory. (Along this line, Santillana
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, __ F.3d
__, 2005 WL 827121, at n.9 (5th Cir. 11 April 2005). He raises the
Booker-issue only in order to preserve it for possible review by
the Supreme Court.) In sum, because he fails plain-error review,
Santillana falls far short of showing the requisite extraordinary
circumstances.
AFFIRMED
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