                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                  January 13, 2006
                       FOR THE FIFTH CIRCUIT
                       _____________________                  Charles R. Fulbruge III
                                                                      Clerk
                            No. 04-40383
                        Conference Calendar
                       _____________________

UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

                                versus

LUIS FERNANDO CONTRERAS-CEDILLO,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 5:03-CR-657-1
_________________________________________________________________

                           ON REMAND FROM
               THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     This   court   affirmed   Luis      Fernando    Contreras-Cedillo’s

conviction and sentence.    United States v. Contreras-Cedillo, 111

Fed. Appx. 338 (5th Cir. 2004).       The Supreme Court vacated and

remanded for further consideration in the light of United States v.

Booker, 125 S.Ct. 738 (2005).     Gonzalez-Orozco v. United States,

125 S.Ct. 1368 (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this opinion should not be published and is not precedent except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.
     In his supplemental brief, Contreras-Cedillo argues that the

district court’s application of mandatory sentencing guidelines was

reversible plain error.**      Contreras-Cedillo acknowledges that he

did not raise this issue before the district court.           On direct

appeal, he argued that the statute of conviction, 8 U.S.C. § 1326,

was unconstitutional in the light of Apprendi v. New Jersey, 530

U.S. 466 (2000), but recognized that his claim was foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998).        He also

argued that, in the light of the Supreme Court’s decision in

Blakely v. Washington, the overruling of Almendarez-Torres would

also affect his guidelines sentence, and that Blakely should be

held to apply to the Sentencing Guidelines.        He raised Booker in

his amended petition for a writ of certiorari.

     In   its   supplemental   brief,   the   Government   asserts   that

Contreras-Cedillo’s argument on direct appeal was insufficient to

preserve a claim of plain error under Booker.      See United States v.

Mares, 402 F.3d 511, 520 (5th Cir. 2005) (applying plain error

     **
      Contreras-Cedillo raises the following arguments to preserve
them for further review by the Supreme Court: (1) that application
of the plain error standard is inappropriate because it would have
been futile for him to have objected to application of the
mandatory guidelines in the light of Fifth Circuit precedent
existing at the time of his sentencing, or because the remedial
portion of Booker was novel and unforeseeable at the time of his
sentencing; (2) that the Booker error was structural and that
prejudice should be presumed; and (3) that the standard for
prejudice applied by this court in United States v. Mares, 402 F.3d
511 (5th Cir.), cert. denied, 126 S.Ct. 43 (2005), and United
States v. Bringier, 405 F.3d 310 (5th Cir.), cert. denied, 126
S.Ct. 264 (2005), is inconsistent with United States v. Dominguez-
Benitez, 124 S.Ct. 2333 (2004).        As he acknowledges, these
arguments are foreclosed by this court’s decisions in Mares and
Bringier.
standard to Booker-related issues raised for first time on appeal),

cert. denied, 126 S.Ct. 43 (2005). Accordingly, the Government

maintains that the “extraordinary circumstances” standard, which

applies when Booker-related issues are raised for the first time in

a petition for a writ of certiorari, rather than the plain error

standard, applies in this case.          See United States v. Taylor, 409

F.3d 675 (5th Cir. 2005).

     It is not necessary for us to decide which standard applies in

this case, because the result is the same under either standard.

In applying the extraordinary circumstances standard, our court in

Taylor    began   its   analysis    by   determining    whether   there   the

appellant had met his burden under the plain error standard.              Id.

at 677.    Because he had not, the court concluded that “the much

more demanding standard for extraordinary circumstances” could not

be satisfied.     Id.

     There is no plain error in this case because, as Contreras-

Cedillo concedes, there is no evidence in the record indicating

that the district court would have imposed a lesser sentence under

advisory sentencing guidelines.          See Mares, 402 F.3d at 520.

     For the foregoing reasons, we conclude 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 Contreras-Cedillo’s conviction and sentence.

                                                       JUDGMENT REINSTATED.
