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this opinion should not be published and is not precedent except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

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 judg ment; and remanded the case for further2

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 i nstructions, 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. Wash ington , 542 U.S. ____,

124 S. Ct. 2531 (2004), because he was sentenced b ased on facts

neither pleaded to, nor found by, a jury. Absent extraordinary

circumstances, we will not consider a defendant’ s B ooker -related

claims presented for the first time in a petition for writ of

certiorari. U

nited 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. S ee 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 district3

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

line, Andrade contends: the district court commit ted “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 B ooker -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