United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 13, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40383
Conference Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUIS FERNANDO CONTRERAS-CEDILLO,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-657-1
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
This court affirmed Luis Fernando Contreras-Cedillo’s
conviction and sentence. United States v. Contreras-Cedillo, 111
Fed. Appx. 338 (5th Cir. 2004). The Supreme Court vacated and
remanded for further consideration in the light of United States v.
Booker, 125 S.Ct. 738 (2005). Gonzalez-Orozco v. United States,
125 S.Ct. 1368 (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this opinion should not be published and is not precedent except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.
In his supplemental brief, Contreras-Cedillo argues that the
district court’s application of mandatory sentencing guidelines was
reversible plain error.** Contreras-Cedillo acknowledges that he
did not raise this issue before the district court. On direct
appeal, he argued that the statute of conviction, 8 U.S.C. § 1326,
was unconstitutional in the light of Apprendi v. New Jersey, 530
U.S. 466 (2000), but recognized that his claim was foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). He also
argued that, in the light of the Supreme Court’s decision in
Blakely v. Washington, the overruling of Almendarez-Torres would
also affect his guidelines sentence, and that Blakely should be
held to apply to the Sentencing Guidelines. He raised Booker in
his amended petition for a writ of certiorari.
In its supplemental brief, the Government asserts that
Contreras-Cedillo’s argument on direct appeal was insufficient to
preserve a claim of plain error under Booker. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005) (applying plain error
**
Contreras-Cedillo raises the following arguments to preserve
them for further review by the Supreme Court: (1) that application
of the plain error standard is inappropriate because it would have
been futile for him to have objected to application of the
mandatory guidelines in the light of Fifth Circuit precedent
existing at the time of his sentencing, or because the remedial
portion of Booker was novel and unforeseeable at the time of his
sentencing; (2) that the Booker error was structural and that
prejudice should be presumed; and (3) that the standard for
prejudice applied by this court in United States v. Mares, 402 F.3d
511 (5th Cir.), cert. denied, 126 S.Ct. 43 (2005), and United
States v. Bringier, 405 F.3d 310 (5th Cir.), cert. denied, 126
S.Ct. 264 (2005), is inconsistent with United States v. Dominguez-
Benitez, 124 S.Ct. 2333 (2004). As he acknowledges, these
arguments are foreclosed by this court’s decisions in Mares and
Bringier.
standard to Booker-related issues raised for first time on appeal),
cert. denied, 126 S.Ct. 43 (2005). Accordingly, the Government
maintains that the “extraordinary circumstances” standard, which
applies when Booker-related issues are raised for the first time in
a petition for a writ of certiorari, rather than the plain error
standard, applies in this case. See United States v. Taylor, 409
F.3d 675 (5th Cir. 2005).
It is not necessary for us to decide which standard applies in
this case, because the result is the same under either standard.
In applying the extraordinary circumstances standard, our court in
Taylor began its analysis by determining whether there the
appellant had met his burden under the plain error standard. Id.
at 677. Because he had not, the court concluded that “the much
more demanding standard for extraordinary circumstances” could not
be satisfied. Id.
There is no plain error in this case because, as Contreras-
Cedillo concedes, there is no evidence in the record indicating
that the district court would have imposed a lesser sentence under
advisory sentencing guidelines. See Mares, 402 F.3d at 520.
For the foregoing reasons, we conclude 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 Contreras-Cedillo’s conviction and sentence.
JUDGMENT REINSTATED.