United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 11, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
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No. 03-40616
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS IVAN GUERRERO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-538-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
The Supreme Court has granted Defendant-Appellant Luis Ivan Guerrero’s petition for a writ
of certiorari, vacated our previous affirmance of his conviction and sentence, and remanded the case
to this court for further consideration in light of United States v. Booker, 125 S. Ct. 738 (2005).
Newsome v. United States, 125 S.Ct. 1112 (2005). We requested and received supplemental letter
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
briefing addressing the impact of Booker.
Guerrero challenged the constitutionality of the Sentencing Guidelines as applied to him for
the first time in a petition for rehearing from the denial of his petition for a writ of certiorari. Absent
exceptional circumstances, we will not consider an argument raised for the first time in a petition for
certiorari. United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005). An appellant who cannot
satisfy the plain error standard under United States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition
for cert. filed (March 31, 2005) (No. 04-9517) cannot demonstrate extraordinary circumstances. See
Taylor, 409 F.3d at 677 (“Because plain error has not been shown, it is obvious that the much more
demanding standard for extraordinary circumstances . . . cannot be satisfied.”).
To establish plain error, an appellant must demonstrate an: (1) error; (2) that is plain; (3) that
affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. United States v. Cotton, 535 U.S. 625, 631 (2002). To satisfy the third
prong of the plain error test under Booker, the appellant must demonstrate that “the sentencing
judge))sentencing under an advisory scheme rather than a mandatory one))would have reached a
significantly different result.” Mares, 402 F.3d at 521. “[I]f it is equally plausible that the error
worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we
do not know which, if either, side is helped, the defendant loses.” Id. Guerrero points to nothing in
the record demonstrating that the sentencing judge would have imposed a lesser sentence under an
advisory scheme. Accordingly, he has not demonstrated exceptional circumstances warranting
consideration of his claim. See Taylor, 409 F.3d at 677.
Having reconsidered our decision in accordance with the Supreme Court’s instructions, we
reinstate our judgment affirming Guerrero’s conviction and sentence.
2