                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                June 17, 2005
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                             No. 04-50154
                          Conference Calendar



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee

     v.

OSCAR LUIS MARQUEZ-GOMEZ,

                  Defendant - Appellant


             Appeal from the United States District Court
                   for the Western District of Texas


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before HIGGINBOTHAM and DAVIS, Circuit Judges.*

PER CURIAM:**

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

Appellant Marquez-Gomez’s conviction and sentence.       See United

States v. Marquez-Gomez, No. 04-50154, 2004 WL 1854540 (5th Cir.



     *
           This matter is being decided by a quorum.     28 U.S.C. §
46(d).
     **
        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that this opinion should not be published and is not precedent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-
2004) (per curiam) (unpublished).       Following our judgment,

Marquez-Gomez filed a petition for certiorari, in which he

challenged for the first time the constitutionality of the

Sentencing Guidelines as applied to him.1      The Supreme Court

granted Marquez-Gomez’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 Marquez-

Gomez’s conviction and sentence.

     Because Marquez-Gomez 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).    Our cases make it clear that an

argument not raised in appellant’s original brief as required by

FED. R. APP. P. 28 is waived.2   Marquez-Gomez’s claim would fail

     1
      The trial court sentenced at the bottom of the Guideline
range but made no statement indicating it would have imposed a
different sentence had the guidelines been advisory. See United
States v. Bringier, 405 F.3d 310 (5th Cir. 2005) (fact that
district court imposed minimum possible sentence under mandatory
Guidelines scheme insufficient to show plain error).
     2
      See Communication Workers of America v. Ector County, 392
F.3d 733, 748 (5th Cir. 2004) (failure to brief an issue
constitutes waiver on appeal); Proctor & Gamble Co. v. Amway
Corp., 376 F.3d 496, 499 (5th Cir. 2004)(party waived argument
not included in original brief to panel). See also 16A C. WRIGHT,
A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3974.1 at 501
(1999)(issues not raised in appellant’s initial brief normally

                                  -2-
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, which requires appellant

to show a “possibility of injustice so grave as to warrant

disregard of usual procedural rules.”   McGee v. Estelle, 722 F.2d

1206, 1213 (5th Cir. 1984) (footnote omitted).   Accordingly, we

decline to consider the merits of his Booker challenge.     Having

reconsidered our decision pursuant to the Supreme Court’s

instructions, we REINSTATE OUR JUDGMENT affirming Marquez-Gomez’s

conviction and sentence.




will not be considered by the court); FED. R. APP. P. 28 (a)(9)(A)
which states that an appellant’s brief must contain “appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies.”

                               -3-
