United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 5, 2005
Charles R. Fulbruge III
Clerk
No. 03-40835
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JOSE TORRES-VASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-36-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and sentence
of Francisco Jose Torres-Vasquez. United States v. Torres-
Vasquez, No. 03-40835 (5th Cir. Feb. 18, 2004). The Supreme
Court vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). See Salas v.
United States, 125 S. Ct. 1111 (2005). We requested and received
supplemental letter briefs addressing the impact of Booker.
*
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this opinion should not be published and is not precedent except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. 03-40835
-2-
Torres-Vasquez argues that he is entitled to resentencing
because the district court sentenced him under a mandatory
application of the United States Sentencing Guidelines prohibited
by Booker. This court will not consider a Booker-related
challenge raised for the first time in a petition for certiorari
absent extraordinary circumstances. United States v. Taylor, 409
F.3d 675, 676 (5th Cir. 2005).
Torres-Vasquez cannot make the necessary showing of plain
error that is required by our precedent in United States v.
Mares, 402 F.3d 511, 520 n.9 (5th Cir 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517). Torres-Vasquez has also
failed to meet the much more demanding standard for extraordinary
circumstances warranting review of an issue raised for the first
time in a petition for certiorari. See Taylor, 409 F.3d at 677.
Moreover, this court has rejected his argument that a Booker
error is a structural error or that such error is presumed to be
prejudicial. See Mares, 402 F.3d at 520-22; see also United
States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),
petition for cert. filed (July 11, 2005) (No. 05-5297).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Torres-Vasquez’s conviction and
sentence.
AFFIRMED.