United States v. Garcia-Ramirez

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: * The Supreme Court vacated the judgment in this case and remanded it to this Court to reconsider in light of United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In supplemental briefing, Gareia-Ramirez argues that resentencing is required under Booker because the district court sentenced him under a mandatory sentencing scheme. After review of Garcia-Ramirez’s claim, we affirm the judgment of the district court. Gareia-Ramirez raised this challenge to his sentence for the first time in his petition for writ of certiorari. Because he has not shown extraordinary circumstances to cure his failure to raise this issue in district court and on direct appeal, we need not consider his claim here. United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005) (holding that an argument not raised in appellant’s original brief is waived); United States v. Taylor, 409 F.3d 675, 676 (5th Cir.2005). Even if we assume the existence of extraordinary circumstances, we may review Garcia-Ramirez’s claim only for plain error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). Thus, Gareia-Ramirez must show that there is (1) error, (2) that is plain, and (3) that affects substantial rights. Id. In light of Booker, we agree that the use of a mandatory sentencing *203 scheme is clear and obvious error. However, Garcia-Ramirez has failed to show that the error affected his substantial rights. He has made no showing that there is a reasonable probability that, but for the error, the district court would have imposed a lesser sentence. Id. at 522. Accordingly, the judgment of the district court is AFFIRMED. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.