                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                       December 14, 2006
                                  FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk

                                           No. 03-41678
                                         Summary Calendar




UNITED STATES OF AMERICA,
                                                                              P laint iff- Appellee,


                                               versus

DAVID MENDOZA-SALINAS,

                                                                               Defendant-Appellant.



                           Appeal from the United States District Court
                               for the Southern District of Texas



       ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

       The United States Supreme Court granted defendant-appellant David Mendoza-Salinas’s

petition for certiorari, vacated this court’s previous judgment, and remanded the case to this court

for reconsideration in light of its ruling in United States v. Booker, 543 U.S. 220 (2005). Mendoza-

Salinas v. United States, 544 U.S. 1047 (2005).


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                    PROCEDURAL HISTORY

       A jury convicted Mendoza-Salinas of possession with intent to distribute more than 100

kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). Pursuant to U.S.S.G. §

2D1.1(c)(5), the Presentence Report assigned an offense level of thirty based on 866.37 kilograms

of marijuana and criminal history category of I. The Guidelines range required ninety-seven to 121

months of imprisonment. The district court sentenced Mendoza-Salinas to ninety-eight months of

imprisonment and five years of supervised release.

       Mendoza-Salinas raised three issues on appeal to this court: (1) the district court’s failure to

conduct an evidentiary hearing on waiver of conflict-free counsel; (2) the government’s plain error

in expressing a personal opinion regarding the credibility of Mendoza-Salinas in closing arguments;

and (3) the government’s failure to prove that Mendoza-Salinas knowingly possessed the particular

type and quantity of controlled substance at issue in this case. On January 5, 2005, we affirmed his

conviction and sentence. United States v. Mendoza-Salinas, 119 F. Appx’ 637 (5th Cir. 2005)

(unpublished).

       In his petition for writ of certiorari, filed on April 5, 2005, Mendoza-Salinas for the first time

argued that his sentence should be reversed, or in the alternative, vacated and remanded for further

consideration in light of Booker. The Supreme Court granted his petition for writ of certiorari,

vacated our earlier judgment, and remanded the case for our reconsideration.

                    FURTHER CONSIDERATION IN LIGHT OF BOOKER

       Pursuant to our instructions, the parties filed briefs on Booker’s affect upon the sentence

imposed by the district court. Mendoza-Salinas acknowledges that he did not present any Booker

challenges before the district court or this court on direct appeal.             Absent extraordinary


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circumstances, we may not review Booker issues raised for the first time in a petition for certiorari.

United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005). Assuming arguendo that Mendoza-

Salinas presented Booker arguments before this court on direct appeal, we would review the district

court’s judgment for plain error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,

126 S. Ct. 43 (2005). To demonstrate plain error, a party must establish: (1) an error; (2) that was

clear and obvious; and (3) said error affected the substantial rights of the defendant. Id. If the

foregoing elements are satisfied, a reviewing court may then use its discretion to find plain error only

if: (4) the error seriously affected “the fairness, integrity, or public reputation of the judicial

proceedings.” Id.

       The imposition of a sentence under a mandatory application of the Guidelines, even without

a Sixth Amendment violation, is plain error. United States v. Valenzuela-Quevedo, 407 F.3d 728,

733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005). Therefore, Mendoza-Salinas meets the first two

prongs of the plain error test. To satisfy the third prong, we must determine “whether [Mendoza-

Salinas] demonstrated that the sentencing judge-sentencing under an advisory scheme rather than a

mandatory one-would have reached a significantly different result.” Mares, 402 F.3d at 521. The

district court made no indication that Mendoza-Salinas would have received “a lesser sentence if it

[the court] was not bound by the Guidelines.” United States v. Garcia-Rodriguez, 415 F.3d 452, 456

(5th Cir.), cert. denied, 126 S. Ct. 641 (2005). The district court instead insinuated that the imposed

sentence fell below the proportionate amount of marijuana attributed to Mendoza-Salinas’s criminal

offense.

       Because Mendoza-Salinas fails to show plain-error, he also fails to meet “the much more

demanding standard for extraordinary circumstances” necessary to review an issue raised for the first


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time in a petition for certiorari. Traylor, 409 F.3d at 677. Mendoza-Salinas also argues that the

Booker error should be deemed structural or presumptively prejudicial. Under the Olano test,

however, the defendant bears the burden of persuasion with respect to prejudice. Mares, 402 F.3d

at 521 (citing United States v. Olano, 507 U.S. 725, 731 (1993)). Furthermore, this Circuit has

rejected these claims in similar contexts. See, e.g.,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. 2005). Accordingly, we affirm Mendoza-Salinas’s sentence.




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