USA v. Marana

Filing 920061108

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 04-20156 ____________________ November 8, 2006 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROSA MAIGUALIDA MARANA, Defendant-Appellant. __________________ Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-CR-333-1 __________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before DAVIS, SMITH and DENNIS, Circuit Judges. PER CURIAM:* In our previous opinion in this case, we affirmed Appellant Marana's conviction and sentence. See United States v. Marana,

No. 04-20156, 111 Fed. Appx. 761 (5th Cir. 2004) (per curiam) (unpublished).
*

Following

our

judgment,

the

defendant

timely

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1

petitioned the Supreme Court for a writ of certiorari alleging for the first time in her petition that the use of the mandatory Sentencing Guidelines violated her Sixth Amendment rights. The

Supreme Court granted the writ, vacated defendant's sentence, and remanded to this court for consideration of defendant's sentence in light of its decision in United States v. Booker, 543 U.S. 220 (2005). We now reconsider the matter and decide to reinstate our

previous judgment affirming Marana's conviction and sentence. Absent extraordinary circumstances, we will not consider a defendant's Booker-related claims presented for the first time in a petition for writ of certiorari. F.3d 675, 676 (5th Cir. 2005). United States v. Taylor, 409 Had Marana raised her Booker-

related claims in her initial appellate brief, this court would have reviewed the argument for plain error. concedes that she cannot show that any Id. at 677. error Marana her

affected

substantial rights, as is required under our circuit's plain error review. See United States v. Mares, 402 F.3d 511, 521-22 Because Marana fails plain error review, she

(5th Cir. 2005).

also fails to show extraordinary circumstances, which is a more demanding standard. Taylor, 409 F.3d at 677.

Marana's concedes that her structural-error and presumptiveprejudice contentions are also foreclosed. See United States v.

2

Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005); United States v. Malveaux, 411 F.3d 558, 561 & n.9 (5th Cir. 2005). For the reasons stated above, our prior disposition remains in effect and we REINSTATE OUR EARLIER JUDGMENT affirming

Marana's conviction and sentence.

3