                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 September 30, 2005

                                                             Charles R. Fulbruge III
                                                                     Clerk
                             No. 04-50190
                          Conference Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

JAVIER VALENZUELA - LUNA

                       Defendant - Appellant

                          --------------------
             Appeal from the United States District Court
                  for the Western District of Texas
                     USDC No. EP-03-CR-1897-1-PRM
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of Javier Valenzuela-Luna

(“Valenzuela”).     United States v. Valenzuela-Luna, No. 04-50190,

2004 WL 2931320 (5th Cir. Dec. 17, 2004).       The Supreme Court

vacated and remanded for further consideration in light of United

States v. Booker, 125 S. Ct. 738 (2005).       We received

supplemental briefs addressing Booker’s impact.




     *
       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this opinion should not be published and is not precedent except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. 04-50190
                                -2-

     Valenzuela acknowledges that he challenged the

constitutionality of his sentence on the principles of Booker for

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

extraordinary circumstances, we will not consider a defendant’s

Booker-related claim 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 Valenzuela raised his Booker argument

in his initial appellate brief, this court would have reviewed

the argument for plain error.   Id. at 677.   As in Taylor,

Valenzuela “points to no evidence in the record suggesting that

the district court would have imposed a lesser sentence under an

advisory guidelines system.”    Id. (citing United States v.

Hernandez-Gonzalez, 405 F.3d 260, 261 (5th Cir. 2005); United

States v. Mares, 402 F.3d 511, 521-22 (5th Cir.), petition for

cert. filed (Mar. 31, 2005) (No. 04-9517).    Indeed, to the

contrary, Valenzuela concedes that he cannot show that the error

affected his substantial rights.

     Because Valenzuela fails plain-error review, he also falls

short of showing the “possibility of injustice so grave as to

warrant disregard of usual procedural rules.”    See United States

v. Ogle, __ F.3d __, No. 03-60833, 2005 WL 1503538, at *1 (5th

Cir. June 27, 2005) (internal quotation marks and citation

omitted).   Accordingly, Valenzuela has failed to show

extraordinary circumstances warranting consideration of an issue
                           No. 04-50190
                                -3-

raised for the first time in a petition for writ of certiorari.

Taylor, 409 F.3d at 677.

     For the first time on remand, Valenzuela challenges the 16-

level enhancement to his sentence, pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), for a prior conviction for a crime of

violence.   Specifically, Valenzuela argues that the enhancement

was not warranted because his prior Texas conviction for injury

to a child does not constitute a crime of violence.    Valenzuela

acknowledges that he is raising this issue for the first time on

remand, but contends that “intervening controlling law” requires

this court to consider the issue.   Valenzuela cites to this

court’s recent decision in United States v. Vasquez-Torres, No.

04-41172, 2005 WL 1130282 (5th Cir. May 13, 2005) in support of

his argument.

     As a minimum, Valenzuela must demonstrate extraordinary

circumstances in order for this court to consider an issue raised

for the first time on remand from the Supreme Court.    Valenzuela

fails to do this.   In Vasquez-Torres, 2005 WL 1130282 at *1,

this court determined, by looking at the elements of the crime,

that the Texas offense of injury to a child does not constitute a

crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).    As the

Government points out, Vasquez-Torres is an unpublished opinion.

As such, under Fifth Circuit Rule 47.5.4 Vasquez-Torres is not

“controlling law” but rather persuasive authority.    Furthermore,

Vasquez-Torres did not announce a new rule of law.     It, in fact,
                            No. 04-50190
                                 -4-

relied on case law existing at the time Valenzuela filed his

appellant brief.   See Vasquez-Torres, 2005 WL 1130282 at *1.

Valenzuela does not explain why he did not challenge the district

court’s 16-level enhancement in his initial appellant brief.

Accordingly, he has failed to demonstrate extraordinary

circumstances warranting consideration of his issue raised for

the first time on remand.

     As Valenzuela acknowledges, his argument that his sentence

is unconstitutional because it was enhanced for a prior

conviction under 8 U.S.C. § 1326(b) is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998).   This court does

not have the authority to overrule Almendarez-Torres.     See United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

     Booker does not require this court to change the prior

affirmance in Valenzuela’s case.   Accordingly, we reinstate our

judgment affirming Valenzuela’s conviction and sentence.
