                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                         UNITED STATES COURT OF APPEALS
                                  FIFTH CIRCUIT                         June 13, 2005

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                  No. 03-40837
                                Summary Calendar


                           UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

                                 HECTOR RUBIO,

                                                         Defendant-Appellant.


               Appeal from the United States District Court
                    for the Southern District of Texas
                              (C-02-CR-351-1)


           ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

       This court affirmed Hector Rubio’s conviction for possession

with       intent   to   distribute   in   excess   of   1,000   kilograms      of

marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and

his 135-month sentence.         United States v. Rubio, 03-40837, 2004 WL

886339 (5th Cir. 27 April 2004). The Supreme Court granted Rubio’s

petition for writ of certiorari and for leave to proceed in forma

pauperis (IFP); vacated our previous judgment; and remanded the


       *
        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this opinion should not be published and is not precedent except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.
case for further consideration in the light of United States v.

Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).                         Rubio v. United

States, 125 S. Ct. 1005 (2005).                 We requested, and received,

supplemental briefs addressing the impact of Booker.                           Having

reconsidered     our    decision     pursuant      to     the    Supreme      Court’s

instructions, we reinstate our judgment affirming the conviction

and sentence.

     For the first time in his petition for writ of certiorari,

Rubio challenged the constitutionality of his sentence, based on

the then-recent holding in Blakely v. Washington, 542 U.S. ____,

124 S. Ct. 2531 (2004), because he was sentenced based on a drug

quantity    neither     pleaded    to,   nor    found   by,     a     jury.    Absent

extraordinary circumstances, we will not consider a defendant’s

Booker-related claims presented for the first time in a petition

for writ of certiorari.           United States v. Taylor, ___ F.3d ___,

2005 WL 1155245, at * 1 (5th Cir. 17 May 2005).

     Rubio      has     presented        no    evidence         of     extraordinary

circumstances.         Furthermore, because Rubio did not raise his

Booker-claims in district court, any review would be only for plain

error.     See United States v. Mares, 402 F.3d 511, 520 (5th Cir.

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

As Rubio concedes, his claims would fail the third prong of plain-

error review because he does not show any error affected his

substantial    rights;    he   makes     no    “showing    that       the   error   ...

                                          2
affected the outcome of the district court proceedings”.               Id. at

521 (quotation omitted).      (Along this line, Rubio contends: the

district court committed “structural error” when it sentenced him

under   a   mandatory   guidelines       system;   and   prejudice     to   his

substantial rights should therefore be presumed. As he recognizes,

however, our court has rejected this contention as inconsistent

with Mares.     See United States v. Malveaux, 03-41618, 2005 WL

827121, at n.9 (5th Cir. 11 April 2005) (unpublished).              He raises

the Booker-issue only in order to preserve it for possible further

review by the Supreme Court.)     In sum, because he fails plain-error

review,     Rubio   falls   far   short     of     showing   the    requisite

extraordinary circumstances.

                                                                   AFFIRMED




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