United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 4, 2005
Charles R. Fulbruge III
Clerk
No. 03-41016
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALEJANDRO GARCIA-RAMIREZ
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
The Supreme Court vacated the judgment in this case and
remanded it to this Court to reconsider in light of United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). In supplemental
briefing, Garcia-Ramirez argues that resentencing is required
under Booker because the district court sentenced him under a
mandatory sentencing scheme. After review of Garcia-Ramirez’s
claim, we affirm the judgment of the district court.
*
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this opinion should not be published and is not precedent except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. 03-41016
-2-
Garcia-Ramirez raised this challenge to his sentence for the
first time in his petition for writ of certiorari. Because he
has not shown extraordinary circumstances to cure his failure to
raise this issue in district court and on direct appeal, we need
not consider his claim here. United States v. Ogle, ___ F.3d
___, No. 03-60833, 2005 WL 1503538, *1 (5th Cir. Jun 27, 2005)
(holding that an argument not raised in appellant’s original
brief is waived); United States v. Taylor, 409 F.3d 675, 676 (5th
Cir. 2005).
Even if we assume the existence of extraordinary
circumstances, we may review Garcia-Ramirez’s claim only for
plain error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005). Thus, Garcia-Ramirez must show that there is (1) error,
(2) that is plain, and (3) that affects substantial rights. Id.
In light of Booker, we agree that the use of a mandatory
sentencing scheme is clear and obvious error. However, Garcia-
Ramirez has failed to show that the error affected his
substantial rights. He has made no showing that there is a
reasonable probability that, but for the error, the district
court would have imposed a lesser sentence. Id. at 522.
Accordingly, the judgment of the district court is AFFIRMED.