United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 14, 2005

Charles R. Fulbruge III Clerk No. 03-40034 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PABLO ABEL VILLARREAL-MEDINA, also known as Paulo Abel Villarreal-Medina,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1179-1 --------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

We affirmed the conviction and sentence of Pablo Abel

Villarreal-Medina (“Villarreal”). United States v. Villarreal-

Medina, No. 03-40034 (5th Cir. Feb. 18, 2003) (per curiam). The

Supreme Court granted Villarreal’s petition for rehearing,

vacated its order that denied his petition for a writ of

certiorari, and vacated and remanded Villarreal’s case for

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40034 -2-

Ct. 738 (2005). We requested and received supplemental letter

briefs addressing the impact of Booker.

The Government asserts that Villarreal’s appeal is moot

because he has been released from custody and has been removed to

Mexico. The Article III, § 2 case or controversy requirement is

met in the instant case because Villarreal is still subject to

supervised release, which is a part of his total sentence. See

United States v. Gonzalez,

(5th Cir. 2001);

United States v. Clark,

(5th Cir. 1999).

Villarreal argues that his sentence was increased in

violation of Booker based on a finding that was made by the

district court and that was not admitted or proved to a jury

beyond a reasonable doubt. Villarreal refers to the finding that

his offense involved the intentional or reckless creation of a

substantial risk of death or serious bodily injury to another

person. Villarreal also contends that his sentence must be

vacated because he was sentenced under a mandatory Sentencing

Guidelines scheme that was subsequently held unconstitutional.

Villarreal asserts that his Booker challenges were preserved

and that review is for harmless error. Villarreal first asserted

a challenge to his sentence based on Blakely v. Washington,

(2004), in his petition for rehearing in the Supreme

Court. Although Villarreal challenged in the district court the

nine-level increase that was applied to his offense level, he did

so on factual grounds without asserting any challenge based on No. 03-40034 -3-

constitutional grounds or based on Apprendi v. New Jersey,

(2000). Accordingly, Villarreal did not preserve the

Booker/Blakely challenges that he now asserts. See United States

v. Akpan,

(5th Cir. 2005); United

States v. Cruz, ___ F.3d ___,

(5th Cir.

July 22, 2005).

Absent extraordinary circumstances, we will not consider a

Booker-related issue even if the issue is raised for the first

time in a petition for a writ of certiorari in the Supreme Court.

United States v. Ogle,

(5th Cir. 2005).

Villarreal has not demonstrated extraordinary circumstances.

See United States v. Ogle,

(5th Cir. 2005).

Villarreal has not even met the less exacting test of plain

error. See United States v. Taylor,

(5th Cir.

2005); United States v. Valenzuela-Quevedo,

(5th Cir. 2005), petition for cert. filed (July 25, 2005)

(No. 05-5556); United States v. Mares,

(5th

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

9517).

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 Villarreal’s

conviction. For the reasons set forth in this opinion on remand,

his sentence is also AFFIRMED.