                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 17, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40251
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

VICTOR PRADO-MARTINEZ,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. B-03-CR-326-2
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM and DAVIS, Circuit Judges.*

PER CURIAM:**

     This court affirmed the judgment of conviction of Victor

Prado-Martinez (Prado).     United States v. Prado-Martinez, 105 F.

App’x 631 (5th Cir. 2004).     The Supreme Court vacated and

remanded for further consideration in light of United States v.

Booker, 543 U.S. 220 (2005).     Because Prado cannot prevail on his



     *
       This appeal is being decided by a quorum due to the
retirement of Judge Pickering. 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this opinion should not be published and is not precedent except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.
                           No. 04-40251
                                -2-

Booker claims, a ruling on the enforceability of his appeal

waiver is pretermitted.

     Prado challenges the constitutionality of his sentence under

Booker.   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).   Had Prado raised his Booker-

related claims in his initial appellate brief, this court would

have reviewed the argument for plain error.    Id. at 677.

     Prado has not demonstrated either Fanfan or Booker error

under a plain-error standard of review.    See United States v.

Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005).     The judge did

not make any statements during sentencing indicating that he

disagreed with the sentence imposed or that he would have imposed

a lesser sentence had he not considered the Guidelines mandatory.

See United States v. Robles-Vertiz, 442 F.3d 350, 352 (5th Cir.

2006); United States v. Rodriguez-Gutierrez, 428 F.3d 201, 203

(5th Cir. 2005), cert. denied, 126 S. Ct. 1383 (2006).     Nor was

there an adverse relationship between the actual sentence imposed

and the range of sentences provided by the Guidelines, as Prado’s

sentence was within the applicable guideline range.     See

Robles-Vertiz, 442 F.3d at 352.   Accordingly, Prado has not shown

that either Fanfan or Booker error affected his substantial

rights.   Because Prado fails plain-error review, he has failed to

show extraordinary circumstances warranting consideration of an
                            No. 04-40251
                                 -3-

issue raised for the first time in a petition for writ of

certiorari.    Taylor, 409 F.3d at 677.

     Prado’s claim that in the alternative, the Booker error (as

well as the Fanfan error) should be presumed prejudicial has been

rejected by this court.    See United States v. Malveaux, 411 F.3d

558, 561 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 194 (2005).

     Prado argues that the district court would have imposed a

lesser sentence had it not erroneously believed that the

imprisonment range was 135 to 168 months.    This claim is not

reviewable because it is not within the scope of the Supreme

Court’s remand or this court’s order to file letter briefs.

Gradsky v. United States, 376 F.2d 993, 996 (5th Cir. 1967).

     We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in

this case.    We therefore affirm the judgment of the district

court.

     AFFIRMED.
