United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 16, 2005
Charles R. Fulbruge III
Clerk
No. 03-10931
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL MILLS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
3:01-CR-177-20-H
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARWOOD, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This case, in which we previously affirmed Mills’s sentence
following resentencing, United States v. Mills, No. 03-10931, 5th
Cir., May 26, 2004 (per curiam) (unpublished), is again before us
on remand from the Supreme Court. The Supreme Court, by its order
of January 25, 2005, granted Mills’s petition for writ of
certiorari, vacated our judgment, and remanded the case to us “for
*
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opinion should not be published and is not precedent except under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.
further consideration in light of United States v. Booker, 543 U.S.
___, 125 S.Ct. 738.” Mills v. United States, 125 S.Ct. 1115 (2005).
At our request, the parties have submitted supplemental briefs
following the Supreme Court’s January 25, 2005 remand order.
Following a jury trial, Mills in January 2002 was found guilty
of conspiring to manufacture and possess with intent to distribute
“in excess of five hundred (500) Grams or more of a mixture or
substance containing a detectable amount of methamphetamine” in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). In April 2002,
Mills was sentenced to 360 months’ confinement, to be followed by
five-years’ supervised release. The PSR calculated the base
offense level – computed on the basis of some 612 Kilograms of
methamphetamine – as 38. U.S.S.G. § 2D1.1(c)(1).1 The PSR added
six levels under U.S.S.G. § 2D1.1(b)(5)(C) because the offense
created a substantial risk of harm to the life of a minor. This
produced a total base offense level of 43 (actually 44, but under
note 2 to the U.S.S.G. Sentencing Table, any base offense level
over 43 is considered as being 43). The PSR calculated that Mills
had three criminal history points, producing a criminal history
category of II. This produced a guideline sentencing range of life
1
U.S.S.G. § 2D1.1(c)(1) provides a base offense level of 38
for “15 KG or more of Methamphetamine.” A base offense level of 32
is provided for “at least 500 G but less than 1.5 KG of
Methamphetamine.” 21 U.S.C. § 841(b)(1)(A)(viii) provides for
imprisonment of “not . . . less than 10 years or more than life”
for a § 841(a) offense involving “500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine.”
2
imprisonment. Mills made various objections to the PSR, including
objections related to drug quantity, criminal history category and
the six level enhancement under section 2D1.1(b)(5)(C). At the
April 2002 sentencing hearing the district court reduced Mills’s
criminal history category to I, finding that category II over-
represented the seriousness of his criminal history. U.S.S.G. §
4A1.3. The district court also, applying Koon v. United States,
116 S.Ct. 2035 (1996), because the case “brings in an element which
was not thoroughly considered by the Sentencing Commission,”
departed downward, reducing the base offense level from 43 to 41,
but rejected Mills’s request that the departure be greater than
that. The result was a guideline sentencing range of 324 to 405
months. Before the district court Mills raised no Booker related
or Sixth Amendment issue. The district court sentenced Mills to
360 months’ imprisonment.
Mills appealed to this court. He raised no Booker related or
Sixth Amendment issue. He did complain, inter alia, that the six
level enhancement under U.S.S.G. § 2D1.1(b)(5)(C) was improper. In
our June 16, 2003 opinion we agreed with that contention, though we
observed that “§ 2D1.1(b)(5)(B)’s three level enhancement
[methamphetamine manufacture creating a substantial risk of harm to
human life other than a life of a minor or incompetent] would have
been sustainable under these factual circumstances.” United States
v. Simpson [and Mills], 334 F.3d 453, 459 (5th Cir. 2003). We
3
rejected all Mills’s other contentions, and vacated Mills’s
sentence and remanded for resentencing. Id.
Mills was resentenced pursuant to our mandate in September
2003. A supplemental PSR was prepared. It again calculated a 38
base offense level determined on quantity; pursuant to our June
2003 opinion, it recommended a three level enhancement under
section 2D1.1(b)(5)(B), instead of a six level enhancement under
section 2D1.1(b)(5)(C); it calculated a criminal history category
of II, but noted the district court had previously reduced that to
I; and it noted the district court’s previous reduction of two base
offense levels under Koon. The supplemental PSR noted that all
this produced a net total base offense level of 39, a criminal
history category of I, and resulting guideline range of 262 to 327
months. Mills argued against the three level enhancement under
section 2D1.1(b)(5)(B) and also that the quantity was overstated.2
Mills raised no Booker related or Sixth Amendment issues at his
resentencing. The district court, following the supplemental PSR’s
calculations, employed a guideline range of 262 to 327 months and
sentenced Mills to 290 months’ imprisonment.
Mills again appealed to this court, contending only that there
was no specific evidence or information in the PSR sufficient to
support the three level enhancement under section 2D1.1(b)(5)(B).
2
He also argued that the previous two level downward
departure and criminal history category I rulings be maintained.
4
We rejected this contention and affirmed his sentence (as imposed
on resentencing) in our May 26, 2004 opinion. Mills raised no
Booker related or Sixth Amendment related issue in this court.
Mills, in his August 2004 petition for certiorari, raised for
the first time the complaint that his sentence was enhanced under
the guidelines on the basis of facts not alleged in the indictment
or found by the jury. The government’s response, filed in
September 2004, was pro forma, merely asserting that “the petition
for a writ of certiorari should be held pending this Court’s
decisions in Booker and Fanfan, and then disposed of as appropriate
in light of the decisions in those cases.”
Having reconsidered our May 26, 2004 decision in light of
Booker pursuant to the Supreme Court’s instructions, we reinstate
our prior judgment affirming Mills’s sentence on his appeal from
his resentencing.
There was, as it is now plain, error in sentencing Mills under
a mandatory guideline system on the basis of facts (other than one
or more prior convictions) not admitted by him or found by the
jury. However, we have held that, absent extraordinary
circumstances, we will not consider a Booker related or Sixth
Amendment claim which was not timely raised in this court. United
States v. Taylor, No. 03-10167, 5th Cir. May 17, 2005; United
States v. Hernandez-Gonzalez, No. 04-40923, 2005 WL 724636 (5th
Cir. March 30, 2005) (raised for first time in petition for
5
rehearing). See also United States v. Sutherland, 428 F.2d 1152,
1158 (5th Cir. 1970); United States v. Ardley, 273 F.3d 991 (11th
Cir. 2001) (en banc).
There are no extraordinary circumstances here. For purpose of
the prejudice prong of “plain error” review under FED. R. CRIM. P.
52(b), the appellant must demonstrate prejudice, which, in the
context of the present Booker error, means that he must demonstrate
a substantial likelihood that the sentencing judge would have given
a lower sentence if he had treated the guidelines as advisory
rather than mandatory. See, e.g., Taylor; Hernandez-Gonzalez;
United States v. Mares, 402 F.3d 511, 521-22 (5th Cir. 2005); pet.
for cert. filed, Mar. 31, 2005 (No. 04-9517); United States v.
Holmes, No. 03-41738 (5th Cir. Apr. 6, 2005), slip op. 2160. Here,
as noted, both at the original sentencing and at the resentencing
the district court sentenced Mills in the approximate middle of the
calculated guideline range (original sentence of 360 months on
calculated guideline range of 324 to 405 months; resentence of 290
months on calculated guideline range of 262 to 327 months). Nor
does anything else in the record point to a contrary conclusion.
Contrary to Mills’s post-remand contention in this court, the
district court’s remarks in connection with its reduction of the
criminal history category from II to I and its two level Koon
downward departure in the base offense level do not indicate
6
otherwise.3
Accordingly, we conclude that nothing in Booker requires us to
change our May 26, 2004 affirmance, and we therefore reinstate our
judgment affirming Mills’s sentence as imposed on his resentencing.
3
There is nothing to suggest that the district court would
have preferred to depart further but felt precluded from doing so
by the guidelines, and indeed the most logical inference is to the
contrary.
7