United States Court of Appeals
Fifth Circuit
F I L E D
In the July 22, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-10099
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCOS MENA-VALERINO; HARLES PORTES HERRERA,
Defendants-Appellants.
_______________________
Appeals from the United States District Court
for the Northern District of Texas
m 4:03-CR-92-2-Y
______________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS, This court affirmed the convictions and sen-
Circuit Judges. tences of Marcos Mena-Valerino and Harles
PER CURIAM:*
*
(...continued)
termined that this opinion should not be published
*
Pursuant to 5TH CIR. R. 47.5, the court has de- and is not precedent except under the limited cir-
(continued...) cumstances set forth in 5TH CIR. R. 47.5.4.
Herrera. United States v. Mena-Valerino, 117 (5th Cir. 1997).
Fed. Appx. 335 (5th Cir. 2004) (per curiam).
In regard to Herrera, the Supreme Court In his motion to recall the mandate, Mena-
vacated and remanded for further consider- Valerino claims there is error under Booker
ation in light of United States v. Booker, 125 because the district court, rather than a jury,
S. Ct. 738 (2005). Herrera v. United States, made a finding regarding the quantity of drugs
125 S. Ct. 1875 (2005). We requested and re- attributable to him. He did in fact make an ob-
ceived supplemental letter briefs from the gov- jection in the district court based on Blakely v.
ernment and both defendants addressing the Washington, 542 U.S. 296 (2004). He was
impact of Booker. sentenced to 180 months, which was in the
middle of the guideline range that the district
I. court calculated, and Mena-Valerino has pro-
Mena-Valerino did not file a petition for vided no reason to believe that, if given the
writ of certiorari. Accordingly, the order of opportunity, the district court would calculate
the Supreme Court vacating and remanding in a sentence any differently under an advisory
the wake of Booker is in regard only to Her- sentencing scheme. There is no just reason to
rera’s certiorari petition, Supreme Court No. recall the mandate.
04-9113. See United States v. Tippett, 975
F.2d 713, 719 (10th Cir. 1992). II.
In his supplemental letter brief, Herrera ac-
Mena-Valerino’s counsel now files a mo- knowledges that he raised no Sixth Amend-
tion for recall of the mandate and to supple- ment objection in the district court, so our re-
ment the record. In his supplemental letter view is for plain error. See United States v.
brief, Mena-Valerino’s attorney states that he Mares, 402 F.3d 511, 520 (5th Cir. 2005),
advised his client “to file a petition for rehear- petition for cert. filed (Mar. 31, 2005) (No.
ing and a [certiorari petition, but] the client 04-9517). “An appellate court may not cor-
“did not pursue any of these remedies.” Coun- rect an error the defendant failed to raise in the
sel now asks us to reopen the case to consider district court unless there is ‘(1) error, (2) that
the impact of Booker and related cases. is plain, and (3) that affects substantial
rights.’” Id. (quoting United States v. Cotton,
We deny the motions. By its very terms, 535 U.S. 625, 631 (2002)). Moreover, Her-
Booker “appl[ies] . . . to all cases on direct re- rera did not articulate a true Sixth Amendment
view.” Booker, 125 S. Ct. at 769. See also In claim until he filed his certiorari petition.
re Elwood, 408 F.3d 211 (5th Cir. 2005) (per
curiam) (holding that “Booker does not apply We have recently held that “absent extra-
retroactively on collateral review”). As the ordinary circumstances, [we will not] consider
government notes in its supplemental letter, an argument raised for the first time in a pe-
Fifth Circuit Rule 41.2 provides that “[o]nce tition for [writ of] certiorari.” United States v.
issued a mandate shall not be recalled except Taylor, 409 F.3d 675, 676 (5th Cir. 2005) (per
to prevent injustice.” We are justified in re- curiam). There is nothing extraordinary about
calling a mandate “when a subsequent decision Herrera’s sentence, which is 160 months chos-
by the Supreme Court renders a previous en from a guideline range of 151-188 months.
appellate decision demonstrably wrong.” There is no showing that the district court
United States v. Tolliver, 116 F.3d 120, 123 would have sentenced differently under an ad-
2
visory scheme. Even without the “extraordi- III.
nary circumstances” requirement, the plain er- In summary, as to Mena-Valerino, the
ror test from Mares is not met. motion to recall the mandate and the motion to
supplement the record are DENIED. As to
Herrera, the judgment of conviction is AF-
FIRMED 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.
3