United States Court of Appeals
Fifth Circuit
F I L E D
In the June 20, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-50018
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID HIGGINBOTHAM,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m SA-02-CR-144-ALL
______________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS, reversal.
Circuit Judges.
Higginbotham acknowledges that the plain
PER CURIAM:* error standard of review applies because did
not preserve a Sixth Amendment error. See
This court affirmed David Higginbotham’s United States v. Mares, 402 F.3d 511, 520
conviction. United States v. Higginbotham, (5th Cir. 2005), petition for cert. filed (Mar.
113 Fed. Appx. 641 (5th Cir. 2004) (per cur- 31, 2005) (No. 04-9517). “An appellate court
iam). He raised no sentencing issues in his may not correct an error the defendant failed
appeal to this court. The Supreme Court to raise in the district court unless there is ‘(1)
vacated and remanded for further consider- error, (2) that is plain, and (3) that affects
ation in light of United States v. Booker, 125 substantial rights.’” Id. (quoting United States
S. Ct. 738 (2005). Higginbotham v. United v. Cotton, 535 U.S. 625, 631 (2002)).
States, 125 S. Ct. 1749 (2005). We requested
and received supplemental letter briefs ad- The problem with this approach, as Higgin-
dressing the impact of Booker. botham recognizes in his supplemental letters,
is that the error was raised for the first time in
I. his petition for writ of certiorari. In United
In his appeal to this court, Higginbotham States v. Taylor, No. 03-10167, 2005 U.S.
did not raise any sentencing issues. After App. LEXIS 8701, at *3 (5th Cir. May 17,
Booker was announced, he filed a petition for 2005), we held that “absent extraordinary
writ of certiorari raising, for the first time in circumstances,” we will not “consider an
any forum, Booker-related sentencing issues. argument raised for the first time in a petition
Specifically, Higginbotham argues in his sup- for [writ of] certiorari.”
plemental letter brief on remand that under the
guidelines that were considered mandatory at Higginbotham responds that Taylor “is
the time of his sentencing, the government’s neither controlling nor persuasive,” because,
choice to charge the quantity of 150 grams of Higginbotham reasons, Taylor is wrongly
heroin, instead of some lesser amount, man- decided, for the reason that in Taylor “the
dated a sentence that was unfairly high. He Supreme Court . . . ordered . . . reconsidera-
relies on comments from the district judge tion” in light of Booker. Thus, Higginbotham
that, he claims, show that the judge thought urges, “[t]he court of appeals may have discre-
the resulting sentence to be excessive but tion to decline, in light of intervening law, to
required by the guidelines. This, Higgin- revisit cases on its own; it does not have
botham asserts, is plain error that requires similar discretion when reconsideration is
ordered by the higher court.” (Higginboth-
am’s emphasis, footnotes omitted.)
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
In Taylor, this court has already addressed
termined that this opinion should not be published
and is not precedent except under the limited cir-
Higginbotham’s contention. In particular, the
cumstances set forth in 5TH CIR. R. 47.5.4. Taylor panel cited with approval United States
2
v. Ardley, 273 F.3d 991 (11th Cir. 2001) (en judge at sentencing. The court felt compelled,
banc), as “holding that even a remand by the under the then-mandatory guidelines, to im-
Supreme Court for reconsideration in light of pose a sentence of 97 months’ imprisonment,
an intervening [Supreme] Court opinion does which was at the bottom end of the applicable
not require the court to consider an argument guideline range. The government urged a
raised for the first time in a petition for [writ] higher sentence. To that the judge replied, “I
of certiorari.” Taylor, 2005 U.S. App. LEXIS mean 97 months is quite a bit of time already.
8701, at *3. Taylor is binding precedent in this Plus he has lost his job [as a prison guard]. It
court; the fact that a party disagrees with that is not likely he will be hired in that capacity
authority makes it no less so. again.”
II. We reject the notion that the court was
Resourcefully, Higginbotham proceeds to indicating, by this, that it would have given a
argue, in the alternative, that even conceding lower sentence under an advisory regime. As
that Taylor is valid as Fifth Circuit precedent, we have said, the court’s comment was in
it is distinguishable. Higginbotham accurately response to the prosecutor’s request for a sen-
observes that the Taylor panel went on to tence greater than 97 months; it does not
examine whether the defendant had satisfied necessarily reflect a view that 97 months was
the “extraordinary circumstances” test for itself unfair.
raising Booker error for the first time in a
certiorari petition. Under Mares, Higginbotham has not shown
that the result under an advisory scheme would
Assuming there is plain error under Booker, have been “significantly different.” Mares,
the third prong of the plain-error test requires, 402 F.3d at 521. “There is no indication in the
under Mares, that “the defendant rather than record from the sentencing judge’s remarks or
the government bears the burden of persuasion otherwise that gives us any clue as to whether
with respect to prejudice.” Mares, 402 F.3d at [the judge] would have reached a different
521 (citing United States v. Olano, 507 U.S. conclusion.” Id. at 522. As far as we can tell
725, 734 (1993)). To show that his substantial from the remarks on which Higginbotham
rights are affected, Higginbotham would have relies, it is at least equally plausible that the
to “point[] to . . . evidence in the record sug- district judge thought the sentence of 97
gesting that the district court would have im- months was “just right,” “not too little and not
posed a lesser sentence under an advisory too much.”
guidelines system.” Taylor, 2005 U.S. App.
LEXIS 8701, at *4 (citations omitted). In oth- Accordingly, Higginbotham has not satis-
er words, “the pertinent question is whether fied the third prong of the plain error stan-
[the defendant] demonstrated that the sentenc- dard. Even if he had done so, we would have
ing judgeSSsentencing under an advisory to consider whether he had met what the
scheme rather than a mandatory one SSwould Taylor panel calls “the much more demanding
have reached a significantly different result.” standard for extraordinary circumstances,
Mares, 402 F.3d at 521. warranting review of an issue raised for the
first time in a petition for [writ of] certiorari.”
To meet this test, Higginbotham, appropri- Taylor, 2005 U.S. App. LEXIS 8701, at *4.
ately, refers to a statement made by the district We do not need to reflect on whether
3
Higginbotham has shown “extraordinary cir-
cumstances,” but if we were to do so, we like-
ly would conclude that his 97-month sentence
falls far short of that.
The judgment of conviction is AFFIRMED
for the reasons stated in our initial opinion.
For the reasons set forth in this opinion on
remand, the judgment of sentence is also
AFFIRMED. All pending motions are DE-
NIED.
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