                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  August 3, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-40786
                           Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JUAN MANUEL AVILA-CHAVEZ,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. B-03-CR-59-1
                          --------------------

         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 Juan Manuel Avila-Chavez

(“Avila”).     See United States v. Avila-Chavez, No. 03-40786 (5th

Cir. Feb. 18, 2004).     The Supreme Court vacated and remanded for

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

Ct. 738 (2005).     We requested and received supplemental letter

briefs addressing the impact of Booker.

     The Government argues that this appeal is moot because Avila

was released from prison and deported back to Mexico on December

     *
       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this opinion should not be published and is not precedent except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. 03-40786
                                 -2-

27, 2004.   Avila argues that his appeal “still presents a live

issue” because he is on supervised release until December 27,

2005.   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 Avila 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).

     Avila’s argument that the district court’s mandatory

application of the guidelines “is structural, or at least

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, ___ F.3d ___, No. 04-40478,

2005 WL 1331282 *2 (5th Cir. June 7, 2005); United States v.

Malveaux, ___ F.3d ___, No. 03-41618, 2005 WL 1320362 *1 n.9 (5th

Cir. Apr. 11, 2005).   Avila’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 F. 3d 675, 676 (5th Cir. 2005)(5th
                           No. 03-40786
                                -3-

Cir. 2005).   Avila identifies “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)); Mares, 402 F.3d at 521-22.   The fact that the district

court imposed the minimum sentence under the guideline range

“alone is no indication that the judge would have reached a

different conclusion under an advisory scheme.”    See United

States v. Bringier, 405 F.3d 310, 317-18 n.4 (5th Cir.

2005)(citing Mares, 402 F.3d at 521-22).   Because Avila 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 Avila’s conviction and sentence.

     AFFIRMED.
