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. 04-20059
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-310-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed Roger Salinas’s sentence following his
guilty-plea convictions for conspiracy to possess with intent to
distribute 3, 4 methylenedioxymethamphetamine (“MDMA”) and aiding
and abetting possession with intent to distribute MDMA. See United
States v. Salinas, No. 04-20059 (5th Cir. Sep. 23, 2004). The
Supreme Court granted Salinas’s petition for a writ of certiorari,
vacated our previous judgment, and remanded the case for further
consideration in light of United States v. Booker, 125 S. Ct. 738
*
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opinion should not be published and is not precedent except under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. 04-20059
-2-
(2005). See Salinas v. United States, 125 S. Ct. 1091 (2005).
This court has received supplemental briefs addressing Booker’s
impact.
Salinas contends that the district court erred by sentencing
him under a mandatory application of the United States Sentencing
Guidelines. He concedes that he raised this issue for the first
time in his petition for a writ of certiorari. This court will not
consider a Booker-related challenge raised for the first time in a
petition for certiorari absent extraordinary circumstances. See
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
We first examine whether Salinas can establish plain error,
for if plain error has not been shown, “it is obvious that the 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. at 677. To meet plain
error, Salinas must show (1) error; (2) that is plain; and (3) that
affects his substantial rights. United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct.
43 (2005). In light of Booker, it is clear that the district court
committed error that is plain. To satisfy the third prong of the
plain-error test, that the error affected his substantial rights,
Salinas must demonstrate “that the sentencing judge--sentencing
under an advisory scheme rather than a mandatory one--would have
reached a significantly different result.” Mares, 402 F.3d at n.9.
Salinas contends that he can show a reasonable probability that the
No. 04-20059
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district court would have imposed a lower sentence because he was
truthful, cooperative, and remorseful. However, he points to no
remarks by the sentencing judge that support this contention.
Salinas also notes that, consistent with the Government’s
recommendation, he was sentenced at the bottom of the applicable
guideline range. However, this contention is unavailing, as it is
foreclosed by United States v. Bringier, 405 F.3d 310, 318 n.4 (5th
Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 264 (2005).
Accordingly, we find that Salinas cannot establish that the
district court’s error affected his substantial rights because
there is “no evidence in the record suggesting that the district
court would have imposed a lesser sentence under an advisory
guidelines system.” Taylor, 409 F.3d at 677.
Salinas also seeks to preserve for further review his
contentions that Booker errors are structural and presumptively
prejudicial. We reject these claims because they conflict with the
applicable standard of review for Booker errors, as set forth in
Mares. See United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th
Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 194 (2005).
Given that plain error has not been shown, Salinas cannot meet
the more demanding extraordinary circumstances test. See Taylor,
409 F.3d at 677. Because nothing in the Supreme Court’s Booker
decision requires us to change our prior decision, we REINSTATE OUR
JUDGMENT affirming Salinas’s sentence.
AFFIRMED.