Conference Calendar UNITED STATES OF AMERICA v. Jesus Tapia

* 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that this opinion should not be published and is not precedent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
December 13, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41364
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JESUS TAPIA
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-172-2
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and sentence
of Jesus Tapia. United States v. Tapia, 115 F. App’x 755, 756
(5th Cir. Dec. 17, 2004). The Supreme Court vacated and remanded
for further consideration in light of United States v. Booker,
543 U.S. 220 (2005). See Muniz-Tapia v. United States, 125 S.

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No. 03-41364
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Ct. 1960 (2005). We requested and received supplemental letter
briefs addressing the impact of Booker.
Tapia contends that he is entitled to be resentenced because
the district court, contrary to the Supreme Court’s later holding
in Booker, sentenced him under a mandatory application of the
United States Sentencing Guidelines. Despite Tapia’s argument to
the contrary, this court will not consider a Booker-related
challenge raised for the first time in a petition for certiorari
absent extraordinary circumstances. See United States v. Taylor,
409 F.3d 675, 676 (5th Cir. 2005).
Tapia concedes that he cannot make even a showing of plain
error, as required by our precedent in United States v. Mares,
402 F.3d 511, 520-22 (5th Cir. 2005), cert. denied, --- U.S.
----, 126 S. Ct. 43 (2005). Therefore, “[b]ecause plain error
has not been shown, it is obvious that the much more demanding
standard for extraordinary circumstances . . . cannot be
satisfied.” Taylor, 409 F.3d at 677. Moreover, our precedent
forecloses his arguments that a Booker error is a structural
error and that such errors are presumed to be prejudicial. See
United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),
cert. denied, --- U.S. ----, 126 S. Ct. 194 (2005); see also
Mares, 402 F.3d at 520-22.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Tapia’s conviction and sentence.
AFFIRMED.

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