                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS         October 19, 2005
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 03-40990
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

SANTOS DE LOS SANTOS,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. B-03-CR-297-1
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     This court affirmed Santos De Los Santos’s sentence for his

guilty-plea conviction of one count of transporting an illegal

alien in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and

1324(a)(1)(A)(v)(II).     See United States v. De Los Santos, No.

03-40990 (5th Cir. Feb. 18, 2004).     The Supreme Court granted De

Los Santos’s petition for a writ of certiorari, vacated this

court’s previous judgment, and remanded the case for further

     *
       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this opinion should not be published and is not precedent except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. 03-40990
                                -2-

consideration in light of United States v. Booker, 125 S. Ct. 738

(2005).   See Newsome v. United States, 125 S. Ct. 1112 (2005).

We requested and received supplemental briefs addressing Booker’s

impact.   Having reconsidered our decision pursuant to the Supreme

Court’s instructions, we reinstate our judgment affirming the

sentence.

     The Government argues that the appeal is moot and also

reasserts the argument that the appeal is barred by the waiver-

of-appeal provision in De Los Santos’s plea agreement.    We agree

with De Los Santos that his appeal is not moot.

     We also agree with De Los Santos that his Booker-based

challenge to his sentence is not barred by the waiver-of-appeal

provision.   The plea agreement specified that the waiver did not

affect De Los Santos’s rights “to appeal an illegal sentence as

set forth in [18 U.S.C. § 3742(a)(1)].”   We construe any

ambiguity in the plea agreement against the Government.      United

States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001).      De Los

Santos’s Booker challenge falls within the broad exception in the

appeal waiver allowing an appeal of an “illegal sentence.”      See

United States v. Somner, 127 F.3d 405, 407-08 (5th Cir. 1997).

     De Los Santos argues that the application of sentence

enhancements based upon facts neither admitted by him nor proved

to a jury violated the Sixth Amendment under Booker.     He further

challenges the enhancement of his sentence under a mandatory

guidelines system held to be unconstitutional in Booker.      De Los
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                                  -3-

Santos contends that his objections in the district court to the

“factual sufficiency of the evidence supporting the enhancements”

preserved this issue for review.    De Los Santos’s objections to

the enhancements were not sufficient to preserve his Booker

challenges, as he did not re-urge them on appeal.     See United

States v. Mares, 402 F.3d 511, 516 & n.2, 520 (5th Cir. 2005),

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

     De Los Santos challenged the constitutionality of his

sentence on the principles of Booker for the first time in the

Supreme Court.   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, 409 F.3d 675, 676 (2005).

     De Los Santos has presented no evidence of extraordinary

circumstances.   He has not even demonstrated the less demanding

standard of plain error.     Under Mares, De Los Santos must show a

reasonable likelihood that the sentencing court would have

imposed a lesser sentence under the advisory guidelines scheme

mandated by Booker.   Mares, 402 F.3d at 521-22.    De Los Santos

has not made the requisite showing of prejudice.

     De Los Santos argues that his substantial rights were

affected because Booker errors are structural or at least

presumptively prejudicial.     This court has rejected arguments

that Booker error is structural and that Booker error should be

presumed prejudicial, as such claims conflict with Mares.     See
                           No. 03-40990
                                -4-

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

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

Because De Los Santos fails under plain-error review, he has not

shown the “possibility of injustice so grave as to warrant

disregard of usual procedural rules,” which is required to

establish extraordinary circumstances.    See United States v.

Ogle, 415 F.3d 382, 384 (5th Cir. 2005)(internal quotations and

citation omitted).

     We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in

this case.   We therefore REINSTATE OUR JUDGMENT affirming De Los

Santos’s sentence.

     AFFIRMED.
