United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 22, 2005
Charles R. Fulbruge III
Clerk
No. 03-21055
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR HUMBERTO GARCIA-MEJIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-589-ALL
On Remand from the Supreme Court
of the United States
Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
This case is now before us on remand from the Supreme Court.
On December 20, 2004, we affirmed appellant’s conviction and
sentence, U.S. v. Garcia-Mejia, 394 F.3d 396 (5th Cir. 2004), and
*
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opinion should not be published and is not precedent except under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.
by its June 6, 2005 order the Supreme Court granted appellant’s
petition for writ of certiorari, vacated our judgment and remanded
the case to this court “for further consideration in light of
United States v. Booker [125 S.Ct. 738 (2005)].” Garcia-Mejia v.
United States, 125 S.Ct. 2555 (2005). Pursuant to our
instructions, the parties have filed with us briefs stating their
respective positions as to the appropriate action for this court to
take pursuant to the Supreme Court’s said remand order.
Appellant, represented by an Assistant Federal Public
Defender, argues only that he is entitled to resentencing because
he was sentenced under a mandatory guidelines system rather than
the advisory guidelines system decreed by Booker, and that such
sentencing constitutes error under Booker which is now “plain.”1
1
Appellant does not contend that he was sentenced on the
basis of facts (or facts other than prior conviction(s)) neither
admitted by him nor found by a jury in violation of his Sixth
Amendment rights (nor by the court on a basis less than beyond a
reasonable doubt). Nor does he contend that his sentence is
unreasonable.
In his appeal to this court appellant, who pled guilty to
violation of 8 U.S.C. § 1326 and was sentenced to 77 months’
confinement under § 1326(b), contended (in addition to his primary,
and sole other, complaint directed to one of the terms of his
supervised release) that “[t]he ‘felony’ and ‘aggravated felony’
provisions of 8 U.S.C. § 1326(b)(1)& (2) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), as it appears
that a majority of the members of the Court now believe that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), was
wrongly decided.” Appellant conceded he had not raised any such
issue in the district court and also stated that “this issue is
foreclosed and is raised solely for possible Supreme Court review.”
We rejected this contention on the basis of our prior holding that
we “must follow Almendarez-Torres ‘unless and until the Supreme
Court itself determines to overrule it.’” 394 F.3d 396 at 399
2
Appellant was charged in a one count indictment with being an
alien who, having been previously excluded, deported and removed
from the United States after conviction of an aggravated felony,
was present in the United States without having obtained the
consent of the Attorney General for reapplication for admission,
contrary to 8 U.S.C. § 1326(a) and (b)(2). Appellant, represented
by an Assistant Federal Public Defender, pleaded guilty (without a
plea agreement). The Presentence Report (PSR), to which no
(quoting U.S. v. Dabit, 231 F.3d 979 at 984 (5th Cir. 2000)).
In his petition for certiorari to the Supreme Court appellant,
through counsel, urged two points. His first point was that the
Supreme Court “should ‘GVR’ this case because . . . [petitioner]
was sentenced under the federal sentencing scheme mandated by 18
U.S.C. § 3553(b)(1) and the United States Sentencing Guidelines,
which this Court found in United States v. Booker . . . to be
facially unconstitutional.” Under this point, appellant stated
that “this Court should ‘GVR this case so that the lower courts may
review it in light of Booker.” Appellant’s second point in his
certiorari petition states “This Court should overrule its prior
decision in Almendarez-Torres v. United States . . . .” Under this
point, appellant does not cite Booker and states “this Court should
grant certiorari . . . to reconsider the constitutional holding in
Almendarez-Torres.”
The government filed a one and half page response to the
certiorari petition stating that “the appropriate disposition is to
grant certiorari, vacate the judgment of the court of appeals, and
remand the case for further consideration in light of Booker and
Fanfan.”
We think it obvious that the Supreme Court’s June 6, 2005
order granting the writ, vacating our judgment and remanding to us
for reconsideration in light of Booker – an order commonly known as
a “GVR” – was not in response to the second point (that concerning
Almendarez-Torres) in the certiorari petition and that the remand
to this court does not contemplate our reconsideration of whether
we should depart from Almendarez-Torres. Nor does appellant make
any contention that our reconsideration should extend to whether we
should continue to follow Almendarez-Torres.
3
objection was made and which so far as here relevant was adopted by
the district court, calculated the base offense level as eight
under U.S.S.G. § 2L1.2(a) and added a sixteen-level enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(A) for appellant’s prior
aggravated felony conviction for burglary of a habitation,
producing an offense level of twenty-four; a three-level reduction
for acceptance of responsibility resulted in an ultimate offense
level of twenty-one. With a criminal history category of VI, the
guideline sentencing range was calculated as 77 to 96 months’
imprisonment. No challenge is made to any of these determinations
or calculations (nor do we perceive any error therein). The
district court ultimately sentenced appellant to 77 months’
imprisonment followed by a three year term of supervised release.
In his appeal to this court appellant, represented by an
assistant Federal Public Defender, at no time raised any Booker-
related issue, and he concedes that the Booker issue he now seeks
relief on was raised for the first time in his petition to the
Supreme Court for writ of certiorari. We have held, however, that
when an appellant, whose case has been remanded to us by the
Supreme Court in a GVR order for reconsideration in light of
Booker, “does not raise any Booker-related challenges to his
sentence until his petition for certiorari, we will not review his
claim absent extraordinary circumstances.” United States v. Ogle,
___ F.3d ___, ___ (5th Cir., June 27, 2005, No. 03-60833, slip op.
4
3003 at 3004); United States v. Taylor, 409 F.3d 675, 676 (5th Cir.
2005). “Even if appellant can satisfy the plain error test, he has
not met the even more exacting test required to show the presence
of extraordinary circumstances, which requires appellant to show a
‘possibility of injustice so grave as to warrant disregard of usual
procedural rules’.” Ogle, ___ F.3d at ___ (citation omitted). See
also, e.g., United States v. Johnson, 718 F.2d 1312, 1325 n.23 (5th
Cir. 1983) (en banc). Nothing of the kind is shown here.
Moreover, although sentencing under a mandatory, as opposed to
an advisory, guidelines system constitutes error that is “plain,”
the third prong of the plain error rule requires that the appellant
must demonstrate that the error was prejudicial to him. United
States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005). This requires
that the appellant show “with a probability sufficient to undermine
confidence in the outcome, that if the judge had sentenced him
under an advisory regime rather than a mandatory one, he would have
received a lesser sentence.” United States v. Infante, 404 F.3d
376, 395 (5th Cir. 2005). Mere uncertainty on this score does not
suffice. Mares at 521. Likewise, the mere fact that the sentence
imposed was the guideline minimum does not suffice to satisfy the
required showing of prejudice. United States v. Martinez-Lugo, 411
F.3d 597, 601 (5th Cir. 2005); United States v. Creech, 408 F.3d
264, 271-72 (5th Cir. 2005); United States v. Holmes, 406 F.3d 337,
5
362-66 (5th Cir. 2005).2
Appellant’s prejudice argument focuses on certain of the
district court’s remarks at the sentencing hearing. Prior to the
sentencing hearing, appellant filed a motion for downward departure
stating that since the government might not be filing a motion for
downward departure under U.S.S.G. § 5K1.1, delay in prosecution was
another ground the court could consider for reducing his sentence
under U.S.S.G. § 5K2.0. At the initial stages of the sentencing
hearing, the government acknowledged that it was not filing a 5K1.1
downward departure motion because, although appellant had
cooperated and been forthcoming, the information furnished was too
remote to pursue. The district court then remarked that it did
“not have the power” to “grant any K1.1's without a motion from the
Government and, therefore, that’s moot.” Later in the sentencing
hearing, after arguments of counsel (including discussions, inter
alia, of appellant’s alternate request for downward departure) and
appellant’s allocution, the court stated
“I, basically, have concluded that contrary to my
initial inclination I would go to the bottom of the
range, not the top of the range, because of the things
that have been brought to my attention that have been
under discussion here and in the motion. But I am not
inclined to downward depart.
2
We reject appellant’s arguments that the error is
“structural” or, alternatively, must be presumed prejudicial. As
we held in Martinez-Lugo, 411 F.3d at 601, those arguments are
necessarily inconsistent with Mares and Infante and our many
decisions following them.
6
. . .
Now with respect to the efforts to cooperate, the
circumstances are clearly very unfortunate. The
Government might have been onto something with the
Defendant had he remained not in custody. But the issues
of cooperation are beyond the scope of this Court’s
ability and power to address directly through any 5K1
downward departures.
With respect to my discretion, I do choose to
exercise my discretion and I will do so by sentencing the
Defendant at the bottom of the range.
I can say to Mr. Garcia-Mejia that I considered the
criminal history and the number of reentries and all of
this stuff a big deal. And that it would have been that
you would have gotten the top of the range but for your
efforts to cooperate and the delay attending prosecution.
But because of all these circumstances, I exercise my
discretion and go to the bottom of the range.” (emphasis
added).3
After imposing a 77 month sentence, the court closed the hearing
stating “the motion for Downward Departure is denied.”
The record does not establish the reasonable probability that
the district court felt it had not adequately and appropriately
addressed appellant’s efforts to cooperate and the delay in
prosecution, as well as his other pleas for leniency, by reducing
3
The court also subsequently remarked:
“I’ll recommend to the Government that if you can
possibly convert some of this information that the
Defendant has given you to a prosecution. It does sound
like he has some valuable information. I don’t know the
details, obviously. And I do encourage the government to
use people like Mr. Mejia who is trying hard to help the
Government and address crimes in or out of the prison
that would make the place safer for the United States
citizens.”
7
his sentence by some 19 months below what the court felt he
otherwise should receive (with a criminal history category of VI
and multiple illegal reentries) or that the court desired to
sentence below 77 months but did not because it felt itself
precluded from doing so by the guidelines.
Thus, appellant has not carried his burden of showing
prejudice under the third prong of the plain error test and hence
is not entitled to relief in any event.
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 prior judgment herein affirming
appellant’s conviction and sentence.
AFFIRMED
8