                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                  June 7, 2005
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                             No. 03-41458



UNITED STATES OF AMERICA

                  Plaintiff - Appellee

     v.

GERARDO JOSE GUTIERREZ, also known as polsIII

                  Defendant - Appellant


             Appeal from the United States District Court
                   for the Southern District of Texas
                            No. M-02-CR-769-1


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.

PER CURIAM:*

     In our previous opinion in this case, we affirmed Defendant-

Appellant Gutierrez’s conviction and sentence.       See United States

v. Gutierrez, No. 03-41458, 110 Fed. Appx. 407, 407-08 (5th Cir.

2004) (per curiam) (unpublished).       Following our judgment,

Gutierrez filed a petition for certiorari, in which he challenged


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that this opinion should not be published and is not precedent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

                                  -1-
for the first time the constitutionality of the Sentencing

Guidelines as applied to him.1   The Supreme Court granted

Gutierrez’s petition for certiorari, vacated our judgment, and

remanded the case to this court for further consideration in

light of United States v. Booker, 125 S. Ct. 738 (2005).     We now

reconsider the matter in light of Booker and decide to reinstate

our previous judgment affirming Gutierrez’s conviction and

sentence.

     Because Gutierrez did not raise any Booker-related

challenges to his sentence until his petition for certiorari, we

will not review his claim absent extraordinary circumstances.

United States v. Taylor, No. 03-10167, 2005 WL 1155245, at *1

(5th Cir. May 17, 2005).   Gutierrez concedes that his claim would

fail under the plain-error test discussed in United States v.

Mares, 402 F.3d 511, 520-22 (5th Cir. 2005), and he therefore

clearly has not met the even more exacting test required to show

the presence of extraordinary circumstances.   See Taylor, 2005 WL

1155245, at *1.   Accordingly, we decline to consider the merits


     1
          Specifically, Gutierrez argues that the district court
erred because it: (1) enhanced his sentence based on facts not
admitted by him or found by a jury beyond a reasonable doubt; and
(2) sentenced him under the assumption that the Guidelines were
mandatory. Gutierrez admits that he did not preserve this claim
in the district court and that he cannot satisfy his burden to
show prejudice under the plain-error test as enunciated in United
States v. Mares, 402 F.3d 511, 520-22 (5th Cir. 2005). However,
in an effort to preserve the issue for further review by the
Supreme Court, he argues that Booker error should be construed as
structural error and that prejudice should be presumed.

                                 -2-
of his Booker challenge.   See id.    Having reconsidered our

decision pursuant to the Supreme Court’s instructions, we

REINSTATE OUR JUDGMENT affirming Gutierrez’s conviction and

sentence.




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