United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
F I L E D
May 17, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10167
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WILLIAM CLARK TAYLOR
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and REAVLEY and GARZA, Circuit Judges.
PER CURIAM:
The Supreme Court has granted Defendant-Appellant Taylor’s
petition for writ of certiorari, vacated our previous judgment in
this case, and remanded the case to this court for further
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). Previously, we had affirmed Taylor’s conviction and
sentence. See United States v. Taylor, No. 03-10167, 2004 WL
1254204, at *1 (5th Cir. June 8, 2004) (per curiam)
(unpublished). Following our judgment, Taylor filed a petition
for certiorari, in which he challenged for the first time the
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constitutionality of the Sentencing Guidelines as applied to
him.1 Having reconsidered our decision pursuant to the Supreme
Court’s instructions, we reinstate our judgment affirming the
conviction and sentence.
We recently held in United States v. Hernandez-Gonzalez, No.
04-40923, 2005 WL 724636 (5th Cir. Mar. 30, 2005), that, absent
extraordinary circumstances, we will not consider Booker issues
raised for the first time in a petition for rehearing. See also
United States v. Sutherland, 428 F.2d 1152, 1158 (5th Cir. 1970)
(per curiam); United States v. Ardley, 273 F.3d 991 (11th Cir.
2001) (en banc) (holding that even a remand by the Supreme Court
for reconsideration in light of an intervening Court opinion does
not require the court to consider an argument raised for the
first time in a petition for certiorari). It would be illogical
for this court, absent exceptional circumstances, to consider an
argument raised for the first time in a petition for certiorari
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In his petition for certiorari, Taylor argues that it
was constitutional error for the district court to enhance his
sentence based on the finding by the district judge, rather than
the jury, that he had obstructed justice. After the Supreme
Court remanded this case to us, Taylor filed a supplemental
letter brief in which he also argues that: (1) the district court
erred by sentencing him pursuant to the mandatory sentencing
guideline regime in place before the Supreme Court’s decision in
Booker; and (2) the remedial portion of Booker retroactively
violates his Due Process rights and the Ex Post Facto Clause of
the Constitution. In his initial appeal to this court, Taylor
did not raise any of these Booker-related arguments, but instead
argued that: (1) the evidence against him was insufficient to
support his conviction; and (2) the district court erred by
finding that he had committed perjury. Taylor, 2004 WL 1254204,
at *1-3. We rejected both of these arguments. Id.
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after having previously held that we will not consider such an
argument in a petition for rehearing. Accordingly, absent
extraordinary circumstances, we will not consider Taylor’s
Booker-related arguments.
Because Taylor did not raise his Booker-related arguments in
the district court, had he raised these challenges in this court
before the decision issued on his direct appeal, we would have
reviewed them for plain error. United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005). There is no plain error here, however,
because Taylor points to no evidence in the record suggesting
that the district court would have imposed a lesser sentence
under an advisory guidelines system. See Hernandez-Gonzalez,
2005 WL 724636, at *1; Mares, 402 F.3d at 521-22. Because plain
error has not been shown, 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.
Accordingly, we conclude that nothing in the Supreme Court’s
Booker decision requires us to change our prior affirmance in
this case. We therefore reinstate our judgment affirming the
defendant’s conviction and sentence.
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