                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit                    July 13, 2005

                                                          Charles R. Fulbruge III
                            No. 04-20280                          Clerk
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

VERSUS

HUMBERTO MACIAS-LUNA,

                                    Defendant-Appellant.

                  _____________________________

                        Consolidated with
                           No. 04-20295
                  _____________________________


UNITED STATES OF AMERICA,
                                    Plaintiff-Appellee,

VERSUS

HUMBERTO MACIAS-LUNA, also known as Humberto Luna Macias,
also known as Humberto Macias Luna, also known as Juan
Becker,

                                    Defendant-Appellant.

                  ____________________________

          Appeals from the United States District Court
                For the Southern District of Texas
                      USDC No. 4:03-CR-298-ALL
                      USDC No. 04:3-CR-478-ALL
                   _____________________________

      ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*

       On March 21, 2005, the Supreme Court granted Macias-Luna’s

petition for a writ of certiorari, vacated the prior judgment of

this    court,       and   remanded   this   appeal     to   this   court   for

“consideration in light of United States v. Booker, 543 U.S.___ [,

125 S. Ct. 738] (2005).”         In its remand order the Supreme Court did

not specify which of the two          majority opinions set forth in Booker

was the basis for its remand decision.            The Supreme Court did make

clear in its Booker decision that both opinions would be applicable

to all cases pending on direct review or not yet final as of

January 12, 2005.          See Booker, 125 S. Ct. at 769 (citing Griffith

v. Kentucky, 479 U.S. 314, 328 (1987)).                 Macias-Luna’s appeal

satisfies those conditions.

       In his original appeal to this court, Macias-Luna claimed only

one ground of error: i.e., that pursuant to Apprendi v. New Jersey,

530    U.S.    466    (2000),   the    “felony”   and   “aggravated    felony”

provisions of 8 U.S.C. § 1326 (b) (1) and (2) are elements of the

offense which must be alleged in the indictment. But Macias-Luna

conceded that such contention was foreclosed by the Supreme Court’s

decision in Almendarez-Torres v. United States, 523 U.S. 224

(1998).       Nothing in Booker addresses this claim of error, and

Macias-Luna failed to object in the district court on either of 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.

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grounds addressed in Booker, i.e., (i) a Sixth Amendment violation

resulting from an enhancement of a sentence based on facts (other

than a prior conviction) found by the sentencing judge, which were

not admitted by the defendant or found by the jury; or (ii) that

the Sentencing Guidelines were unconstitutional because they were

mandatory and not advisory. Absent extraordinary circumstances, we

will not consider Booker issues raised for the first time in a

petition for certiorari.           United States v. Taylor, 409 F.3d 675,

676 (5th Cir. 2005).        However, even if we were to review for plain

error, Booker’s Sixth Amendment holding would not be applicable

here because the district court did not enhance Macias-Luna’s

sentence on the basis of any facts not found by the jury.                  In

addition, Macias-Luna could not satisfy his burden of proving

reversible plain error on the basis that his sentence was applied

under an unconstitutional mandatory sentencing scheme because there

is nothing in the record to suggest that the district court would

have sentenced Macias-Luna differently under an advisory scheme.

Thus, because Macias-Luna cannot even show plain error, it is clear

that   this   case   does    not    present   extraordinary    circumstances

warranting our review.

       Because   nothing     in    the   Supreme   Court’s   Booker   decision

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

therefore reinstate our judgment affirming Macias-Luna’s conviction

and sentence.

       AFFIRMED.

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