                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                        August 11, 2005
                                        FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                           ____________

                                           No. 03-40616
                                           ____________


UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,

versus

LUIS IVAN GUERRERO,

                               Defendant-Appellant.


                           Appeal from the United States District Court
                               for the Southern District of Texas
                                   USDC No. M-02-CR-538-1



         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

         The Supreme Court has granted Defendant-Appellant Luis Ivan Guerrero’s petition for a writ

of certiorari, vacated our previous affirmance of his conviction and sentence, and remanded the case

to this court for further consideration in light of United States v. Booker, 125 S. Ct. 738 (2005).

Newsome v. United States, 125 S.Ct. 1112 (2005). We requested and received supplemental letter




         *
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
briefing addressing the impact of Booker.

        Guerrero challenged the constitutionality of the Sentencing Guidelines as applied to him for

the first time in a petition for rehearing from the denial of his petition for a writ of certiorari. Absent

exceptional circumstances, we will not consider an argument raised for the first time in a petition for

certiorari. United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005). An appellant who cannot

satisfy the plain error standard under United States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition

for cert. filed (March 31, 2005) (No. 04-9517) cannot demonstrate extraordinary circumstances. See

Taylor, 409 F.3d at 677 (“Because plain error has not been shown, it is obvious that the much more

demanding standard for extraordinary circumstances . . . cannot be satisfied.”).

        To establish plain error, an appellant must demonstrate an: (1) error; (2) that is plain; (3) that

affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings. United States v. Cotton, 535 U.S. 625, 631 (2002). To satisfy the third

prong of the plain error test under Booker, the appellant must demonstrate 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. “[I]f it is equally plausible that the error

worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we

do not know which, if either, side is helped, the defendant loses.” Id. Guerrero points to nothing in

the record demonstrating that the sentencing judge would have imposed a lesser sentence under an

advisory scheme. Accordingly, he has not demonstrated exceptional circumstances warranting

consideration of his claim. See Taylor, 409 F.3d at 677.

        Having reconsidered our decision in accordance with the Supreme Court’s instructions, we

reinstate our judgment affirming Guerrero’s conviction and sentence.


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