                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 4, 2005

                                                            Charles R. Fulbruge III
                              No. 04-40518                          Clerk
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

CESAR TREJO-HERNANDEZ,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 1:04-CR-41-ALL
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     We affirmed the sentence of Cesar Trejo-Hernandez. United

States v. Trejo-Hernandez, No. 04-40518 (Dec. 17, 2004) (per

curiam).     The Supreme Court vacated and remanded for further

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

(2005).     We requested and received supplemental letter briefs

addressing the impact of Booker.

     Trejo 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


     *
       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this opinion should not be published and is not precedent except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. 04-40518
                                 -2-

unconstitutional.   Trejo conceded that his argument was

foreclosed by existing precedent, but he sought to preserve the

issue for further review.   Nothing in the Supreme Court’s Booker

decision affected the validity of Almendarez-Torres v. United

States, 523 U.S. 224 (1998).   See Booker, 125 S. Ct. at 756 (the

Booker holding applies to any fact (other than a prior

conviction)).   The decision in Apprendi v. New Jersey, 530 U.S.

466 (2000), left Almendarez-Torres intact.   See Apprendi, 530

U.S. at 489-90 (“fact of a prior conviction” need not be

submitted to a jury).

     Trejo argued in his initial brief and in his petition for a

writ of certiorari that his sentence should be vacated because he

was sentenced under the erroneous assumption that the Guidelines

were mandatory.   Our review of this issue is for plain error.

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.

2005), petition for cert. filed (July 25, 2005) (No. 05-5556).

Although Trejo has satisfied the first two criteria for

establishing plain error, he is required to demonstrate that “the

sentencing judge--sentencing under an advisory scheme rather than

a mandatory one--would have reached a significantly different

result.”   United States v. Mares, 402 F.3d 511, 521 (5th Cir.

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

Valenzuela-Quevedo, 407 F.3d at 733.   Trejo has not met his

burden because there is “no evidence in the record suggesting

that the district court would have imposed a lesser sentence
                           No. 04-40518
                                -3-

under an advisory guidelines system.”     United States v. Taylor,

409 F.3d 675, 677 (5th Cir. 2005).

     Trejo challenged in his initial brief and he again

challenges the eight-level increase he received based on the

finding that his prior Texas conviction for possession of cocaine

is an aggravated felony.   He asserts that other circuits have

held that simple possession should not be considered an

aggravated felony in the immigration context.    Id.

     Following the grant of certiorari, this case was remanded to

this court “for further consideration in light of United States

v. Booker.”   When a case is remanded to this court from the

Supreme Court in limited terms, by clear implication, this court

must confine its review to matters within those limitations.     See

Gradsky v. United States, 376 F.2d 993, 996 (5th Cir. 1967)

(“Except that which we are mandated to review, our previous

rulings are the law of the case and will not now be

reconsidered.”).

     Trejo argues on remand for the first time, citing Booker,

125 S. Ct. at 756, that his sentence was increased based on a

finding made by the district court that he committed the instant

offense within two years of his release from custody on another

conviction.   Trejo contends that his “guideline range was

artificially enhanced by a counterintuitive understanding of the

meaning of the term drug-trafficking, which includes felony

possession of a controlled substance.”    Trejo also challenges for
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                                 -4-

the first time on remand our decision in United States v.

Scroggins, ___ F.3d ___, 2005 WL 1324808 (5th Cir. June 6, 2005).

     We do not consider Trejo’s Scroggins challenge.    Cf.

Gradsky, 376 F.2d at 996.   Trejo cannot satisfy the less

demanding showing of plain error, much less demonstrate

extraordinary circumstances on his Sixth Amendment issues that

are raised for the first time.    See Taylor, 409 F.3d at 677

(“Because plain error has not been shown, it is obvious that the

much more demanding standard for extraordinary circumstances,

. . . cannot be satisfied.”).    Trejo concedes that he cannot

point to anything in the record to indicate that the district

court, in a post-Booker sentencing proceeding, would have imposed

a different sentence.   See Mares, 402 F.3d at 521.

     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 Trejo’s conviction.

For the reasons set forth in this opinion on remand, his sentence

is also AFFIRMED.

     AFFIRMED.
