1 Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

January 27, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-40116

Conference Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTONIO LOREDO-TORRES, also

known as Juan Vega Perez,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas, Laredo

USDC No. 5:03-CR-1265-ALL

_________________________________________________________________

ON REMAND FROM THE

SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.

PER CURIAM: 1

Antonio Loredo-Torres pleaded guilty to illegal entry in

violation of 8 U.S.C. § 1325. The presentence report calculated

his base offense level as eight, pursuant to U.S.S.G. § 2L1.2(a).

Sixteen levels were added, pursuant to U.S.S.G.

2L1.2(b)(1)(A)(vii), because of a prior conviction for aiding and

abetting the illegal transportation of aliens. Loredo-Torres did

not object to the enhancement. Loredo-Torres received a three-2

level reduction for acceptance of responsibility, resulting in a

tota l offense level of 21, which resulted in a Guidelines

imprisonment range of 57 to 71 months. Because the statutory

maximum sentence was only two years, the district court sentenced

Loredo-Torres to 24 months imprisonment.

On appeal, Loredo-Torres argued that the district court erred

by relying on information contained in the presentence repo rt to

enhance his base offense level based on a determination that he had

a prior conviction for an alien smuggl ing offense committed for

profit. He also argued that the district court erred when it

applied the enhancement because transportation of illegal aliens is

not “alien smuggling”. He conceded that those contentions were

foreclosed by United States v. Sanchez-Garcia

, 319 F.3d 677, 678

( 5th Cir. 2003), and U nited States v. Solis-Campozano

, 312 F.3d

164, 167-68 (5th Cir. 2002). This court affirmed his sentence.

United States v. Loredo-Torres

, 110 Fed. Appx. 445 (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).

Loredo-Torres v. United States

, 125 S.Ct. 1421 (2005) . We

requested and received supple mental letter briefs addressing the

impact of Booker

.

In his supplemental brief, Loredo-Torres argues that we should

pretermit the Booker issue and remand on the ground that the

Supreme Court’s decision in Shepard v. United States

, 125 S.Ct.

1254 (2005), establishes that the district court misapplied the2 The Gove rnment notes that Loredo-Torres referred to the

“forthcoming Supreme Court decision in Shepard ” in his petition for

writ of certiorari. Because the Supreme Court’s order in this case

was issued on February 28, 2005, and the Shepard decision was

issued on March 7, the Government ,maintains that the Court had to

have been aware of the issue in Shepard when it issued the mandate

in this case.

3 Guideline s when it enhanced his sentence pursuant to U.S.S.G. §

2L1.2(b)(1)(A ) (vii) based on his prior conviction for illegal

transportation of aliens. The cases cited by Loredo-Torres in

support of t his contention are distinguishable, because none of

them were remanded by the Supreme Court for further consideration

in the light of Booker

. The Supreme Court remanded Loredo-Torres’s

case for the specific purpose of further consideration in the light

of Booker . When a case is remanded to this court from the Supreme

Court with specific instructions, this court must confine its

review to the limitations established by the Supreme Court’s remand

order. See Gradsky v. United States , 376 F.2d 993, 996 (5th Cir.

1967) (“Except that which we are mandated to review, our previous

rulings are the law of t he case and will not now be

reconsidered.”); United States v. Lee II

, 358 F.3d 315, 321 (5th

Cir. 2004) (“Absent exceptional circumstance s, the mandate rule

compels compliance on remand with the dictates of a superior court

and forecloses relitigation of issues expressly or impl iedly

decided by the appellat e court.”). 2 Loredo-Torres’s arguments

regarding the misapplication of the guidelines are beyond the scope

of the Supreme Court’s remand and we will not consider them.3 Loredo-Torres acknowledges that the following issues are

foreclosed by our precedent, but raises them to preserve them for

further Supreme Court review: (1) that B ooker error is structural,

or at least presumptively prejudicial, thus obviating the need for

a specific showing of prejudice; and (2) that this court’s decision

in United States v. Bringier

, 405 F.3d 310 (5th Cir.), cert.

denied , 126 S.Ct. 264 (2005), is inconsistent with (because it is

more stringent than) the reasonable probability standard announced

in United States v. Dominguez-Benitez , 124 S.Ct. 2333 (2004).

4 Loredo-Torres also contends that there was error under Booker

because he was sentenced under the assumption of a mandatory

Guidelines system. 3 He raised this i ssue for the first time in his

petition for writ of certiorari. This court recently held that, in

the absen ce of extraordinary circumstances, the court will not

consider Booker -r elated arguments raised for the first time in a

petition for a writ of certiorari. U nited States v. Taylor , No.

03-10167, 2005 WL 1155245 (5th Cir. May 17, 2005).

Because Loredo-Torres did not raise his Booker -related

arguments in the district court, we would have reviewed them for

plain error had he raised them for the first time on direct appeal.

United States v. Mares

, 402 F.3d 511, 520 (5th Cir.), cert. denied

,

126 S.Ct. 43 (2005) . There is no plain error because, as LoredoTorres concedes, there is no evidence in the record indicating that

the district court would have imposed a lesser se ntence under

advisory sentencing guidelines. Because Loredo-Torres has not

shown plain error , he cannot satisfy “the much more demanding

standard for extraordinary circumstances, warranting review of an5

issue raised for the first time in a petition for certiorari”.

Taylor , 2005 WL 1155245, at *1.

For the foregoing reasons, we conclude that nothing in the

Supreme Cour t’s Booker decision requires us to change our prior

affirmance in this case. We therefore reinstate our judgment

affirming Loredo-Torres’s conviction and sentence.

JUDGMENT REINSTATED.