United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 19, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40990
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS DE LOS SANTOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-297-1
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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 Santos De Los Santos’s sentence for his
guilty-plea conviction of one count of transporting an illegal
alien in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and
1324(a)(1)(A)(v)(II). See United States v. De Los Santos, No.
03-40990 (5th Cir. Feb. 18, 2004). The Supreme Court granted De
Los Santos’s petition for a writ of certiorari, vacated this
court’s previous judgment, and remanded the case for further
*
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this opinion should not be published and is not precedent except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. 03-40990
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consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). See Newsome v. United States, 125 S. Ct. 1112 (2005).
We requested and received supplemental briefs addressing Booker’s
impact. Having reconsidered our decision pursuant to the Supreme
Court’s instructions, we reinstate our judgment affirming the
sentence.
The Government argues that the appeal is moot and also
reasserts the argument that the appeal is barred by the waiver-
of-appeal provision in De Los Santos’s plea agreement. We agree
with De Los Santos that his appeal is not moot.
We also agree with De Los Santos that his Booker-based
challenge to his sentence is not barred by the waiver-of-appeal
provision. The plea agreement specified that the waiver did not
affect De Los Santos’s rights “to appeal an illegal sentence as
set forth in [18 U.S.C. § 3742(a)(1)].” We construe any
ambiguity in the plea agreement against the Government. United
States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001). De Los
Santos’s Booker challenge falls within the broad exception in the
appeal waiver allowing an appeal of an “illegal sentence.” See
United States v. Somner, 127 F.3d 405, 407-08 (5th Cir. 1997).
De Los Santos argues that the application of sentence
enhancements based upon facts neither admitted by him nor proved
to a jury violated the Sixth Amendment under Booker. He further
challenges the enhancement of his sentence under a mandatory
guidelines system held to be unconstitutional in Booker. De Los
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Santos contends that his objections in the district court to the
“factual sufficiency of the evidence supporting the enhancements”
preserved this issue for review. De Los Santos’s objections to
the enhancements were not sufficient to preserve his Booker
challenges, as he did not re-urge them on appeal. See United
States v. Mares, 402 F.3d 511, 516 & n.2, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
De Los Santos challenged the constitutionality of his
sentence on the principles of Booker for the first time in the
Supreme Court. Absent extraordinary circumstances, we will not
consider a defendant’s Booker-related claims presented for the
first time in a petition for writ of certiorari. United States
v. Taylor, 409 F.3d 675, 676 (2005).
De Los Santos has presented no evidence of extraordinary
circumstances. He has not even demonstrated the less demanding
standard of plain error. Under Mares, De Los Santos must show a
reasonable likelihood that the sentencing court would have
imposed a lesser sentence under the advisory guidelines scheme
mandated by Booker. Mares, 402 F.3d at 521-22. De Los Santos
has not made the requisite showing of prejudice.
De Los Santos argues that his substantial rights were
affected because Booker errors are structural or at least
presumptively prejudicial. This court has rejected arguments
that Booker error is structural and that Booker error should be
presumed prejudicial, as such claims conflict with Mares. See
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United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.
2005), petition for cert. filed (July 11, 2005) (No. 05-5297).
Because De Los Santos fails under plain-error review, he has not
shown the “possibility of injustice so grave as to warrant
disregard of usual procedural rules,” which is required to
establish extraordinary circumstances. See United States v.
Ogle, 415 F.3d 382, 384 (5th Cir. 2005)(internal quotations and
citation omitted).
We conclude, therefore, that nothing in the Supreme Court’s
Booker decision requires us to change our prior affirmance in
this case. We therefore REINSTATE OUR JUDGMENT affirming De Los
Santos’s sentence.
AFFIRMED.