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this opinion should not be published and is not precedent except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

July 14, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-40984

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS ANTONIO ANDRADE, also known as Marco Guerraro-Perez,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(B-03-CR-117-1)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

This court affirmed Luis Andrade’s guilty-plea conviction for

illegal re-entry subsequent to an aggravated felony conviction, in

violation of 8 U.S.C. § 1326(a), (b), and his 77-month sentence.

United States v. Andrade, No. 03-40984, 2004 WL 1013369 (5th Cir.

6 May 2004). The Supreme Court granted Andrade’s petition for writ

of certiorari and for leave to proceed in forma pauperis (IFP);

vacated our previous judgment; and remanded the case for further
2

consideration in the light of United States v. Booker, 543 U.S.

___, 125 S. Ct. 738 (2005). Andrade v. United States, 125 S. Ct.

1034 (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,

Andrade 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 facts

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). 

Andrade has presented no evidence of extraordinary

circumstances. Even if such circumstances were not required,

because Andradeo 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 Andrade concedes, his claims

would fail the third prong of plain-error review because he does

not show any error affected his substantial rights; he makes no

“showing that the error ... affected the outcome of the district
3

court proceedings”. Id. at 521 (quotation omitted). (Along this

line, Andrade 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, ___ F.3d ___, 2005 WL 827121, at *1 n.9 (5th Cir. 11

April 2005). He raises the Booker-issue only in order to preserve

it for possible review by the Supreme Court.) In sum, because he

fails plain-error review, Andrade falls far short of showing the

requisite extraordinary circumstances.

AFFIRMED