                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                 October 19, 2005
                        FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                    Clerk
                             No. 04-40330
                           Summary Calendar
                       ))))))))))))))))))))))))))

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

versus

Miguel Angel Montalvo-Nunez,

                                                    Defendant-Appellant,




             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 1:03-CR-755-ALL




         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Miguel Angel Montalvo-Nunez pleaded guilty to one count of

possession with the intent to distribute 96.6 kilograms of marijuana

in violation of 21 U.S.C. § 841(a)(1)&(b)(1)(C). Pursuant to his

guilty-plea conviction, the district court sentenced Montalvo-Nunez

to forty-one months of imprisonment, to be followed by three years



     *
      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this opinion should not be published and is not precedent except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.
of   supervised   release.     This    Court      affirmed    Montalvo-Nunez’s

judgment of conviction.       United States v. Montalvo-Nunez, 111 F.

App’x. 779 (5th Cir. 2004).       Montalvo-Nunez filed a petition for

certiorari.    The Supreme Court granted Montalvo-Nunez’s petition,

vacated    this   Court’s    judgment,      and    remanded    the   case   for

consideration in light of United States v. Booker, 125 S. Ct. 738

(2005).    Montalvo-Nunez v. United States, 125 S. Ct. 1683 (2005).

We requested and received supplemental letter briefs addressing the

impact of Booker and United States v. Mares, 402 F.3d 511 (5th Cir.

2005).

      On remand, Montalvo-Nunez argues that the district court’s

belief that the sentencing guidelines were mandatory constituted

error.    Montalvo-Nunez advanced this argument for the first time in

his petition for certiorari.      Absent extraordinary circumstances,

we will not consider a Booker-related claim when it is presented for

the first time in a writ of certiorari.            United States v. Taylor,

409 F.3d 675, 676 (5th Cir. 2005).          Montalvo-Nunez has presented no

evidence of extraordinary circumstances which would enable him “to

show a ‘possibility of injustice so grave as to warrant disregard

of usual procedural rules.’”      United States v. Ogle, 415 F.3d 382,

383-84 (5th Cir. 2005)(quoting McGee v. Estelle, 722 F.2d 1206, 1213

(5th Cir. 1984)).

      Even if showing such extraordinary circumstances were not

required, because Appellant did not raise his Booker-related claims



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in district court, any review would be for plain error.            See Mares,

402 F.3d at 520.     In order to establish plain error, Montalvo-Nunez

must show: (1) error, (2) that is clear and obvious, and (3) that

affects substantial rights. Id.; United States v. Infante, 404 F.3d

376, 394 (5th Cir. 2005). “‘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.’”

Mares, 402 F.3d at 520 (quoting United States v. Cotton, 535 U.S.

625, 631 (2002)).

     Montalvo-Nunez acknowledges that, under Mares, his claim fails

at the third step of the plain error analysis because he cannot

demonstrate that the alleged error affected his substantial rights.

However,    Appellant    contends   that     because   the   district      court

committed “structural error” by sentencing him under a mandatory

Guidelines regime, prejudice to his substantial rights should be

presumed.    This Court has rejected that contention as inconsistent

with Mares.      United States v. Malveaux, 411 F.3d 558, 550 n.9 (5th

Cir. 2005), petition for cert. filed (U.S. July 11, 2005)(No. 05-

5297).     Moreover, there is no indication in the record that the

district court would have imposed a lower sentence if the Guidelines

had been advisory. See Infante, 404 F.3d at 394-95.                     Hence,

Montalvo-Nunez cannot carry his “burden of demonstrating that the

result   would    have   likely   been     different   had   the   judge    been



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sentencing under the Booker advisory regime rather than the pre-

Booker mandatory regime.” Mares, 402 F.3d at 522.

     Because Appellant fails to demonstrate either plain error or

extraordinary    circumstances,   we    reinstate   our   prior   opinion

affirming Montalvo-Nunez’s conviction and sentence.

     AFFIRMED.




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