                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                               January 27, 2006
                         FOR THE FIFTH CIRCUIT
                         _____________________             Charles R. Fulbruge III
                                                                   Clerk
                              No. 04-20011
                          Conference Calendar
                         _____________________

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

                                versus

MARCO ANTONIO CRUZ-PEREZ,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Houston
                       USDC No. 4:03-CR-171-1
_________________________________________________________________

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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

PER CURIAM:1

     This court affirmed Marco Antonio Cruz-Perez’s conviction and

sentence.     United States v. Cruz-Perez, 110 Fed. Appx. 457 (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).     Cruz-Perez v. United States, 125 S.Ct. 1613 (2005).

We requested and received supplemental letter briefs addressing the

impact of Booker.



     1
      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this opinion should not be published and is not precedent except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.
     In his supplemental brief, Cruz-Perez argues that the district

court    erred   by   sentencing   him   under   a   mandatory   sentencing

guidelines range greater than the range authorized solely by his

own admissions, based upon the district court’s findings made by

only a preponderance of the evidence.2       Cruz-Perez concedes that he

did not raise a Booker claim on direct appeal, but instead did so

for the first time in his petition for writ of certiorari.             This

court has 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 Cruz-Perez 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).      Under the plain error standard, we may correct an

error in Cruz-Perez’s sentence only if he demonstrates that “there

     2
      Cruz-Perez acknowledges that the following contentions are
foreclosed by our precedent, but raises them to preserve them for
further review by the Supreme Court: (1) 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 unforeseeable at the time of his sentencing; (2) that
the Booker error was structural or presumptively prejudicial; (3)
that this court’s standard of review for plain error applied in
Mares and United States v. Bringier, 405 F.3d 310 (5th Cir.), cert.
denied, 126 S.Ct. 264 (2005), is inconsistent with (because it is
more stringent than) the reasonable probability standard announced
in United States v. Dominguez-Benitez, 124 S.Ct. 2333 (2004).

                                     2
is (1) error, (2) that is plain, and (3) that affects substantial

rights.    If all three conditions are met an appellate court may

then exercise its discretion to notice a forfeited error but only

if (4) the error seriously affects the fairness, integrity, or

public    reputation   of   judicial       proceedings.”      Id.   (internal

citations and quotation marks omitted).          The first two prongs are

satisfied here, because Cruz-Perez was sentenced pursuant to a

mandatory sentencing guidelines range based on facts found by the

judge but not admitted by him.         See United States v. Creech, 408

F.3d 264, 271-72 (5th Cir. 2005).

     To satisfy the third prong of the plain error test, Cruz-Perez

must show, “with a probability sufficient to undermine confidence

in the outcome, that if the judge had sentenced him under an

advisory sentencing regime rather than a mandatory one, he would

have received a lesser sentence.”           United States v. Infante, 404

F.3d 376, 394-95 (5th Cir. 2005).             Cruz-Perez argues that the

Booker errors affected his substantial rights because he was

sentenced on the basis of a Guidelines range that exceeded the

Guidelines range supported by his admissions, in violation of his

due process and Sixth Amendment rights.          He contends that Booker’s

remedial holding (striking the statutory provisions making the

Sentencing Guidelines mandatory) cannot, consistently with due

process, be applied retroactively against him, because to do so

would violate his Sixth Amendment right to be sentenced only on the

basis of the facts admitted in his guilty plea.            This contention is

                                       3
foreclosed by Booker.       See United States v. Scroggins, 411 F.3d

572, 576 (5th Cir. 2005) (rejecting a similar argument and holding

that both the Sixth Amendment holding of Booker and its remedial

interpretation of the Sentencing Act apply to all cases on direct

review).

       Cruz-Perez also contends that his substantial rights were

affected because there is a reasonable probability that, but for

the error of believing that the Guidelines were mandatory, the

district court would have imposed a lower sentence.                  He asserts

that    the   sentence   imposed   was     directly   linked    to     the   Sixth

Amendment flaw in the calculation of the imprisonment range, and

the imprisonment range thus should have been lower.

       Cruz-Perez has not demonstrated that his substantial rights

were affected.     He has not pointed to anything in the record to

indicate that there is a reasonable probability that the district

court    would   have    imposed   a   lesser    sentence      under    advisory

guidelines.      Because Cruz-Perez 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.

       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 Cruz-Perez’s conviction and sentence.

                                                       JUDGMENT REINSTATED.

                                       4
