* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 13, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-40837

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR RUBIO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(C-02-CR-351-1)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

This court affirmed Hector Rubio’s conviction for possession

with intent to distribute in excess of 1,000 kilograms of

marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and

his 135-month sentence. United States v. Rubio, 03-40837, 2004 WL

886339 (5th Cir. 27 April 2004). The Supreme Court granted Rubio’s

petition for writ of certiorari and for leave to proceed in forma

pauperis (IFP); vacated our previous judgment; and remanded the
2

case for further consideration in the light of United States v.

Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). Rubio v. United

States, 125 S. Ct. 1005 (2005). We requested, and received,

supplemental briefs addressing the impact of Booker. Having

reconsidered our decision pursuant to the Supreme Court’s

instructions, we reinstate our judgment affirming the conviction

and sentence.

For the first time in his petition for writ of certiorari,

Rubio challenged the constitutionality of his sentence, based on

the then-recent holding in Blakely v. Washington, 542 U.S. ____,

124 S. Ct. 2531 (2004), because he was sentenced based on a drug

quantity neither pleaded to, nor found by, a jury. 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, ___ F.3d ___,

2005 WL 1155245, at * 1 (5th Cir. 17 May 2005). 

Rubio has presented no evidence of extraordinary

circumstances. Furthermore, because Rubio did not raise his

Booker-claims in district court, any review would be only for plain

error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.

2005), petition for cert. filed, (U.S. 31 Mar. 2005) (No. 04-9517).

As Rubio concedes, his claims would fail the third prong of plainerror review because he does not show any error affected his

substantial rights; he makes no “showing that the error ...
3

affected the outcome of the district court proceedings”. Id. at

521 (quotation omitted). (Along this line, Rubio contends: the

district court committed “structural error” when it sentenced him

under a mandatory guidelines system; and prejudice to his

substantial rights should therefore be presumed. As he recognizes,

however, our court has rejected this contention as inconsistent

with Mares. See United States v. Malveaux, 03-41618, 2005 WL

827121, at n.9 (5th Cir. 11 April 2005) (unpublished). He raises

the Booker-issue only in order to preserve it for possible further

review by the Supreme Court.) In sum, because he fails plain-error

review, Rubio falls far short of showing the requisite

extraordinary circumstances.

AFFIRMED