United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2005
Charles R. Fulbruge III
Clerk
No. 03-40916
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID DANIEL SALAZAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-87-CR-28-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of David Daniel Salazar.
United States v. Salazar, No. 03-40916 (5th Cir. Apr. 9, 2004)
(unpublished). The Supreme Court vacated and remanded for further
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). See Salazar v. United States, 125 S. Ct. 1038 (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opinion should not be published and is not precedent except under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. 03-40916
-2-
Salazar argues that the district court erred by enhancing his
sentence based upon judge-found facts that were not admitted by him
or proven to a jury beyond a reasonable doubt. He asserts that
this issue should be reviewed under the harmless error standard
because he raised the substance of this issue both in the district
court and this court.
While Salazar challenged the factual findings underpinning the
drug quantity determination both in the district court and this
court, he did not raise a Sixth Amendment challenge or make an
objection based upon Booker, Blakely v. Washington, 542 U.S. 296
(2004), or Apprendi v. New Jersey, 530 U.S. 466 (2000). His
objections were not sufficient to preserve this issue for review.
See United States v. Mares, 402 F.3d 511, 516-17 & n.2, 520 (5th
Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 43 (2005). The
earliest that Salazar could have raised this issue was in his
petition for certiorari to the Supreme Court. We 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).
Salazar identifies “no evidence in the record suggesting that
the district court would have imposed a lesser sentence under an
advisory guidelines system.” Id. at 677; see also Mares, 402 F.3d
at 521-22. Accordingly, Salazar has not shown that his sentence
was plainly erroneous. See Taylor, 409 F.3d at 677. Because
Salazar has not demonstrated plain error, “it is obvious that the
No. 03-40916
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much more demanding standard for extraordinary circumstances,
warranting review of an issue raised for the first time in a
petition for certiorari, cannot be satisfied.” Id.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Salazar’s convictions and
sentences.
AFFIRMED.