                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             February 23, 2006
                        FOR THE FIFTH CIRCUIT
                        _____________________             Charles R. Fulbruge III
                                                                  Clerk
                             No. 04-40106
                        _____________________

UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

                                versus

ERNESTO ROMERO,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 7:02-CR-105-1
_________________________________________________________________

                           ON REMAND FROM
               THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:*

     This court affirmed Ernesto Romero’s conviction and sentence.

United States v. Romero, 111 Fed. Appx. 330 (5th Cir. 2004).          The

Supreme Court vacated and remanded for further consideration in the

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

United States, 125 S.Ct.     1349 (2005).   We requested and received

supplemental letter briefs addressing the impact of Booker.

     In his supplemental brief, Romero argues that the district

court’s   application   of   mandatory   sentencing   guidelines      was

     *
      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this opinion should not be published and is not precedent except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.
reversible plain error.         Romero acknowledges that he did not raise

any Booker-related arguments before the district court or on direct

appeal.   Instead, he raised the issue for the first time in his

amended petition for writ of certiorari.         This court recently held

that, in the absence of extraordinary circumstances, the court will

not consider Booker-related arguments raised for the first time in

a petition for a writ of certiorari.         United States v. Taylor, 409

F.3d 675, 676 (5th Cir. 2005).

     Because Romero did not raise his Booker-related arguments in

the district court, we would have reviewed them for plain error had

he raised them for the first time on direct appeal.           United States

v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S.Ct. 43

(2005). There is no plain error because, as Romero concedes, there

is no evidence in the record indicating that the district court

would have imposed a lesser sentence under advisory sentencing

guidelines.      Because Romero has not shown plain error, he cannot

satisfy   “the    much   more    demanding   standard   for   extraordinary

circumstances, warranting review of an issue raised for the first

time in a petition for certiorari”.          Taylor, 409 F.3d at 677.

     Alternatively, Romero contends that application of the plain

error standard is inappropriate because it would have been futile

for him to have objected to application of the mandatory guidelines

in the light of Fifth Circuit precedent existing at the time of his

sentencing, or because the remedial portion of Booker was novel and



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unforeseeable at the time of his sentencing.    As he acknowledges,

these arguments are foreclosed by this court’s decision in Mares.

     Finally, Romero contends that the Booker error was structural

and that prejudice should be presumed.      This contention is also

foreclosed by Mares.    See United States v. Martinez-Lugo, 411 F.3d

597, 601 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005); United

States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert. denied,

126 S.Ct. 194 (2005).

     For the foregoing reasons, we conclude that nothing in the

Supreme Court’s Booker decision requires us to change our prior

affirmance in this case.      We therefore reinstate our judgment

affirming Romero’s conviction and sentence.

                                               JUDGMENT REINSTATED.




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