                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                       F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                       January 23, 2006
                                FOR THE FIFTH CIRCUIT
                                                                                   Charles R. Fulbruge III
                                          __________                                       Clerk
                                         No. 03-51337
                                       Conference Calendar
                                         __________


UNITED STATES OF AMERICA,

                                                                                  Plaintiff-Appellee,

versus

MAURICIO VASQUEZ-RAMOS,

                                                                              Defendant-Appellant.

                                          __________
                           Appeal from the United States District Court
                                for the Western District of Texas
                                  No. DR-03-CR-412-01-AML
                                         __________

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

         We affirmed the conviction and sentence of Mauricio Vasquez-Ramos. United States v.

Vasquez-Ramos, No. 03-51337 (5th Cir. Jan. 10, 2005). The Supreme Court vacated and remanded

for further consideration in light of United States v. Booker, 543 U.S. 220 (2005). See Baez v.

United States, 125 S. Ct. 1992 (2005).      We requested and received supplemental letter briefs

addressing the impact of Booker.


*
 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 R. 47.5, the court has determined that this opinion should not be published and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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        Vasquez-Ramos argues that the district court erred under both Booker and its companion

case, United States v. Fanfan. See United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.),

cert. denied, 126 S. Ct. 464 (2005). First, Vasquez-Ramos contends that the district court’s findings

that he committed the illegal reentry offense while he was on supervised release and within two years

after his release from prison increased his sentence and constituted plain error that affected his

substantial rights. Second, Vasquez-Ramos asserts that the district court committed plain error that

affected his substantial rights when it sentenced him pursuant to an unconstitutional mandatory

sentencing guideline scheme. He concedes that he raised his Booker-related challenges for the first

time in a petition for a writ of certiorari.

        Absent extraordinary circumstances, we will not consider a Booker-related claim presented

for the first time in a petition for a writ of certiorari. See United States v. Taylor, 409 F.3d 675, 676

(5th Cir. 2005). To demonstrate extraordinary circumstances, Vasquez-Ramos must “show a

possibility of injustice so grave as to warrant disregard of usual procedural rules.” United States v.

Ogle, 415 F.3d 382, 384 (5th Cir. 2005) (citation and internal quotation omitted), cert. denied, —

S. Ct. —, 2005 WL 3038483 (U.S. Dec. 12, 2005) (No. 05-7454). This burden is “more exacting”

than that which is required to show plain error. Id.

        Under the plain error standard of review, the appellant must show that (1) there is an error

(2) that is clear or obvious and (3) that affects his substantial rights. United States v. Olano, 507 U.S.

725, 732 (1993). Any impermissible fact-finding by the district court, as well as the district court’s

belief that the sentencing guidelines were mandatory, constituted error that was plain. See United

States v. Mares, 402 F.3d 511, 520–21 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005); Martinez-Lugo,

411 F.3d at 600. However, Vasquez-Ramos has failed to demonstrate, with a probability sufficient

to undermine confidence in the outcome, that the error affected his substantial rights. See Mares, 402
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F.3d at 520–21. Accordingly, he has not shown plain error. Since Vasquez-Ramos cannot even meet

the plain error standard, he cannot meet “the much more demanding standard for showing

extraordinary circumstances.” See Taylor, 409 F.3d at 677.

       Additionally, Vasquez-Ramos argued in his initial brief and in his petition for a writ of

certiorari that the provisions of 8 U.S.C. § 1326(b) are unconstitutional. Vasquez-Ramos concedes

that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See

United States v. Bonilla-Mungia, 422 F.3d 316, 318–19 (5th Cir. 2005).

       Vasquez-Ramos wishes to raise, to preserve for further review, arguments challenging the

validity of our opinions in Mares and United States v. Scroggins, 411 F.3d 572 (5th Cir. 2005). As

he concedes, his arguments are foreclosed. See United States v. Eastland, 989 F.2d 760, 768 n.16

(5th Cir. 1993).

       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 Vasquez-Ramos’s conviction.

The judgment of the district court is AFFIRMED.
