United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 14, 2005
Charles R. Fulbruge III
Clerk
No. 03-40034
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO ABEL VILLARREAL-MEDINA, also known as
Paulo Abel Villarreal-Medina,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1179-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
We affirmed the conviction and sentence of Pablo Abel
Villarreal-Medina (“Villarreal”). United States v. Villarreal-
Medina, No. 03-40034 (5th Cir. Feb. 18, 2003) (per curiam). The
Supreme Court granted Villarreal’s petition for rehearing,
vacated its order that denied his petition for a writ of
certiorari, and vacated and remanded Villarreal’s case for
further consideration in light of United States v. Booker, 125 S.
*
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this opinion should not be published and is not precedent except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. 03-40034
-2-
Ct. 738 (2005). We requested and received supplemental letter
briefs addressing the impact of Booker.
The Government asserts that Villarreal’s appeal is moot
because he has been released from custody and has been removed to
Mexico. The Article III, § 2 case or controversy requirement is
met in the instant case because Villarreal is still subject to
supervised release, which is a part of his total sentence. See
United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001);
United States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999).
Villarreal argues that his sentence was increased in
violation of Booker based on a finding that was made by the
district court and that was not admitted or proved to a jury
beyond a reasonable doubt. Villarreal refers to the finding that
his offense involved the intentional or reckless creation of a
substantial risk of death or serious bodily injury to another
person. Villarreal also contends that his sentence must be
vacated because he was sentenced under a mandatory Sentencing
Guidelines scheme that was subsequently held unconstitutional.
Villarreal asserts that his Booker challenges were preserved
and that review is for harmless error. Villarreal first asserted
a challenge to his sentence based on Blakely v. Washington, 542
U.S. 296 (2004), in his petition for rehearing in the Supreme
Court. Although Villarreal challenged in the district court the
nine-level increase that was applied to his offense level, he did
so on factual grounds without asserting any challenge based on
No. 03-40034
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constitutional grounds or based on Apprendi v. New Jersey, 530
U.S. 466 (2000). Accordingly, Villarreal did not preserve the
Booker/Blakely challenges that he now asserts. See United States
v. Akpan, 407 F.3d 360, 375, 376-77 (5th Cir. 2005); United
States v. Cruz, ___ F.3d ___, 2005 WL 1706518 at *2 (5th Cir.
July 22, 2005).
Absent extraordinary circumstances, we will not consider a
Booker-related issue even if the issue is raised for the first
time in a petition for a writ of certiorari in the Supreme Court.
United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005).
Villarreal has not demonstrated extraordinary circumstances.
See United States v. Ogle, 415 F.3d 382, 383-84 (5th Cir. 2005).
Villarreal has not even met the less exacting test of plain
error. See United States v. Taylor, 409 F.3d 675, 677 (5th Cir.
2005); United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33
(5th Cir. 2005), petition for cert. filed (July 25, 2005)
(No. 05-5556); United States v. Mares, 402 F.3d 511, 521 (5th
Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No. 04-
9517).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
therefore reinstate our judgment affirming Villarreal’s
conviction. For the reasons set forth in this opinion on remand,
his sentence is also AFFIRMED.