                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                      June 17, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 03-20937
                          Conference Calendar


                            UNITED STATES,

                                                 Plaintiff-Appellee,

                                versus

                            ROBERTO GARZA,

                                                Defendant-Appellant.


             Appeal from the United States District Court
                   for the Southern District of Texas
                             (H-03-CR-94-2)


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed Roberto Garza’s 87-month sentence imposed

pursuant to a guilty-plea conviction for possession with intent to

distribute in excess of five kilograms of cocaine.     United States

v. Garza, 03-20937, 2004 WL 1418781 (5th Cir. 22 June 2004).          The

Supreme Court granted Garza’s petition for writ of certiorari and

for leave to proceed in forma pauperis (IFP); vacated our previous

judgment; and remanded the case for further consideration in 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this opinion should not be published and is not precedent except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.
light of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005).    Garza v. United States, 125 S. Ct. 1054 (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 sentence.

     For the first time in his petition for rehearing en banc,

Garza challenged the constitutionality of his sentence, based on

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

124 S. Ct. 2531 (2004), claiming the district court sentenced him

according to a drug quantity larger than that to which he pleaded.

Absent    extraordinary    circumstances,   we   will     not   consider    a

defendant’s Booker-related claims presented for the first time in

a petition for rehearing. United States v. Hernandez-Gonzalez, 405

F.3d 260, 261 (5th Cir. 2005).

     Garza      has    presented    no   evidence    of      extraordinary

circumstances.        At sentencing, Garza objected to the district

court’s drug quantity calculation as a misinterpretation of the

Guidelines; he did not object on constitutional grounds.           Even if

we did not require showing extraordinary circumstances, because

Garza did not raise Booker-related 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).       Garza’s claims would fail the third

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prong of plain-error review because he “cannot carry his burden of

demonstrating that the [sentence] would have likely been different

had the judge been sentencing under the Booker advisory regime

rather than the pre-Booker mandatory regime”.   Id. at 522.   In sum,

because he fails plain-error review, Garza falls far short of

showing the requisite extraordinary circumstances.

                                                        AFFIRMED




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