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

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 02-41771
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JIMMY DE LUNA-VIGIL,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. L-02-CR-704-ALL
                         --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of Jimmy De Luna-Vigil.

See United States v. De Luna-Vigil, No. 02-41771 (5th Cir. Feb.

18, 2004) (unpublished).     The Supreme Court vacated and remanded

for further consideration in light of United States v. Booker,

125 S. Ct. 738 (2005).     Newsome v. United States, 125 S. Ct. 1113

(2005).     We requested and received supplemental letter briefs

addressing the impact of Booker.


     *
       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this opinion should not be published and is not precedent except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. 02-41771
                                -2-

     The Government argues that this appeal is moot because Vigil

was released from prison on January 27, 2004.   Vigil contends

that his appeal still presents a live issue because he is on

supervised release until January 27, 2007.   Article III, § 2 of

the Constitution requires that a “‘case or controversy . . .

subsist[] through all stages of federal judicial proceedings,

trial and appellate.’”   See Spencer v. Kemna, 523 U.S. 1, 7

(1998); see also United States v. Clark, 193 F.3d 845, 847 (5th

Cir. 1999).   This requirement is met because Vigil is still

subject to supervised release, a part of his total sentence.      See

United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001).

     Vigil’s argument that the district court’s mandatory

application of the Guidelines is “structural,” and “presumptively

prejudicial,” thus obviating the need for a specific showing of

prejudice, has been rejected as inconsistent with this court’s

analysis in United States v. Mares, 402 F.3d 511 (5th Cir.),

petition for cert. filed (Mar. 31, 2005) (No. 04-9517).     See

United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.

2005); United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.

2005), petition for cert. filed (July 11, 2005) (No. 05-5297).

     Vigil’s alternative argument, that the district court’s

mandatory application of the Guidelines constitutes plain error,

also lacks merit.   This court will not consider a Booker-related

challenge raised for the first time in a petition for certiorari

absent extraordinary circumstances.   United States v. Taylor, 409
                           No. 02-41771
                                -3-

F.3d 675, 676 (5th Cir. 2005).   Vigil’s argument that the record

suggests that the district court may have imposed a lesser

sentence under an advisory guideline system is refuted by the

record.   Since Vigil has not demonstrated plain error, “it is

obvious that the much more demanding standard for extraordinary

circumstances, warranting review of an issue raised for the first

time in a petition for certiorari, cannot be satisfied.”     See

Taylor, 409 F.3d at 677.

     Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we

reinstate our judgment affirming Vigil’s conviction and sentence.

     AFFIRMED.
