                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                 September 20, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-10332
                             Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus


DARIN HEATH WEST,

                                         Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                              (03-CR-46)
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
               *
PER CURIAM:

     The Supreme Court granted Appellant West’s petition for writ

of certiorari, vacated our judgment in this case, and remanded it

to us for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005).      Previously, we affirmed West’s

conviction and sentence.       See United States v. West, 114 Fed.


     *
          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that this opinion should not be published and is not precedent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
Appx. 159 (5th Cir. 2004), vacated by 125 S. Ct. 1867 (2005).

Following our judgment, West filed a petition for certiorari,

challenging for the first time the constitutionality of the

federal Sentencing Guidelines as applied in his case.   After

reconsidering our decision in light of Booker, we reinstate our

prior judgment affirming West’s conviction and sentence.

     We will not consider arguments raised for the first time in

a petition for certiorari absent extraordinary circumstances.

See United States v. Taylor, 409 F.3d 675, 676 (5th Cir 2005).

Since West’s case features none, we will not consider his Booker

arguments.

     Alternatively, we note that West concedes in his certiorari

petition that he did not preserve the Booker error at trial.

Thus, even if we were to consider his Booker-based argument, we

would still deny relief as West could not survive the plain error

review mandated by United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005).

     Accordingly, we reinstate our judgment affirming West’s

conviction and sentence.




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