United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-20299
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JUAN GUARDADO-ORTEGA, also known as Jorge Guardado-Ortega
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-438-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the convictions and sentences of Juan
Guardado-Ortega. United States v. Guardado-Ortega, No. 04-20299
(5th Cir. Dec. 17, 2004) (unpublished). The Supreme Court
vacated and remanded for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). See Vences v. United
States, 125 S. Ct. 1991 (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this opinion should not be published and is not precedent except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. 04-20299
-2-
Guardado argues that he is entitled to resentencing because
the district court sentenced him under a mandatory application of
the 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).
Guardado argues that this court’s holding in Taylor is not
controlling because it is contrary to earlier precedent in this
circuit and that plain error is therefore the proper standard of
review in this case. He concedes, however, that he cannot make
the necessary showing of plain error that is required by our
precedent in United States v. Mares, 402 F.3d 511, 521 (5th Cir
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Moreover, this court has rejected his arguments 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 Guardado’s convictions and
sentences.
AFFIRMED.