                                             United States Court of Appeals
                                                      Fifth Circuit
                                                   F I L E D
        UNITED STATES COURT OF APPEALS
                 FIFTH CIRCUIT                     August 12, 2005

                                               Charles R. Fulbruge III
                                                       Clerk
                 No. 04-30079


          UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

                    versus


                HIRAM GARCIA,
                                      Defendant-Appellant.

*********************************************

              Consolidated with


                 No. 04-30127



          UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

                    versus

                JESSE VITELA,

                                      Defendant-Appellant.


Appeals from the United States District Court
     for the Western District of Louisiana
                (02-CR-50503-2)
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:*

      In a consolidated opinion, this court affirmed Hiram Garcia’s

and   Jesse    Vitela’s   guilty-plea   convictions   for   conspiracy   to

possess with intent to distribute more than 500 grams of powder

cocaine, possession with intent to distribute more than 500 grams

of powder cocaine, and possession with intent to distribute a

detectable amount of marijuana.         United States v. Garcia, No. 04-

30079, 112 Fed. Appx. 991 (5th Cir. 17 Nov. 2004).             Garcia was

sentenced to 150 months imprisonment; Vitela to 121 months.

      The Supreme Court granted Garcia’s and Vitela’s petitions for

writ of certiorari and for leave to proceed in forma pauperis;

vacated our previous judgment; and remanded the case for further

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

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

1714 (2005); Vitela v. United States, 125 S. Ct. 1716 (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 convictions and sentences.



      *
        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.

                                    2
     For the first time in his petition for writ of certiorari,

Vitela challenged the constitutionality of his sentence, based on

the holding in Booker, because he was sentenced based on certain

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, 409 F.3d 675, 676

(5th Cir. 2005).

     Vitela       has     presented        no      evidence        of      extraordinary

circumstances.      See United States v. Ogle, ___ F.3d ___, 2005 WL

1503538    (5th    Cir.   27       June   2005)    (per        curiam)    (holding   that

extraordinary circumstances require a showing of a “possibility of

injustice so grave as to warrant disregard of usual procedural

rules”).    Even if such circumstances were not required, because

Vitela 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).              Vitela contends his claims satisfy

plain-error review, as described in Mares, because, according to

Vitela,    the    district     court      believed        it    was    “precluded    from

departing below the sentencing guidelines range[,] despite Vitela’s

cooperation, given that the government had not filed a motion

pursuant to       U.S.S.G.     §    5K1.1”.        However,       Vitela    provides   no



                                            3
citation to the record for the statement; accordingly, his claim

fails.

      As for Garcia, he raised Booker error for the first time on

appeal, by means of a pre-oral argument Federal Rule of Appellate

Procedure 28(j) letter. This is sufficient to preserve plain error

review.     See U.S. v. Garcia-Rodriguez, ___ F.3d ___, 2005 WL

1538993, at *4 n.4 (5th Cir. 30 June 2005).           He concedes, however,

that “there is no clear indication in the record that the judge

would have reached a different result if he had not been required

to sentence pursuant to mandated guidelines sentencing range”.

Instead, he has raised the issue to preserve it for further review.

(Along this line, both Vitela and Garcia contend: the district

court committed “structural error” when it sentenced them under a

mandatory guidelines system; and prejudice to their substantial

rights should therefore be presumed.            Our court has rejected this

contention as inconsistent with Mares.               See United States v.

Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005).)

      In sum, because Vitela fails to cite to the relevant portions

of   the   record,   he   falls   far   short   of   showing   the   requisite

extraordinary circumstances. And, as Garcia admits, he fails plain

error review.

                                                               AFFIRMED




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