United States v. Gonzalez-Capetillo

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 21, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40045
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELA GONZALEZ-CAPETILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-925-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and sentence
of Angela Gonzalez-Capetillo. United States v. Gonzalez-
Capetillo, No. 03-40045 (5th Cir. Feb. 17, 2004). The Supreme
Court vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). See Gonzalez-
Capetillo v. United States, 125 S. Ct. 1021 (2005). We requested

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and received supplemental letter briefs addressing the impact of
Booker.
Gonzalez-Capetillo argues that she is entitled to
resentencing because the district court erred under Booker by
basing her sentence on the amount of cocaine found by the judge
and by imposing the sentence under a mandatory application of the
United States Sentencing Guidelines. This court will not
consider a Booker-related challenge raised for the first time in
a petition for certiorari absent extraordinary circumstances.
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
Gonzalez-Capetillo concedes that she cannot make the
necessary showing of plain error that is required by our
precedent in United States v. Mares, 402 F.3d 511, 520 n.9 (5th
Cir 2005), petition for cert. filed (Mar. 31, 2005) (No.
04-9517). Moreover, this court has rejected her argument that a
Booker error is a structural error or that such error is presumed
to be prejudicial. See Mares, 402 F.3d at 520-22; see also
United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),
petition for cert. filed (July 11, 2005) (No. 05-5297). Because
she has not demonstrated plain error, “it is obvious that the
much more demanding standard for extraordinary circumstances
warranting review of an issue raised for the first time in a
petition for certiorari, cannot be satisfied.” Taylor, 409 F.3d
at 677.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we

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reinstate our judgment affirming Gonzalez-Capetillo’s conviction
and sentence.
AFFIRMED.

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