United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-10438
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEFAN DEWAYNE LONGBINE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-257-ALL-Y
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Stefan Longbine. United
States v. Longbine, No. 04-10438 (5th Cir. Dec. 16, 2004)
(unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). Longbine v. United States, 125 S. Ct. 1996
(2005).
*
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this opinion should not be published and is not precedent except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.
No. 04-10438
-2-
We requested and received supplemental letter briefs
addressing the impact of Booker. Longbine now contends that the
district court violated Booker and the Sixth Amendment by basing
his offense level for receipt of child pornography on U.S.S.G.
§ 2G2.2 and by adjusting his offense level upwards by a total of
eight levels based on the sadistic or masochistic nature of the
images, the depiction of prepubescent minors, and the use of a
computer.
Longbine previously in this court challenged only the
adjustment for sadistic or masochistic images pursuant to Blakely
v. Washington, 124 S. Ct. 2531 (2004). Longbine did not raise
his Sixth Amendment challenge in the district court; our review
of the challenge to sadistic or masochistic images thus is for
plain error. See United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.
04-9517).
Longbine raised his contention that basing his sentence on
U.S.S.G. § 2G2.2 through the cross-reference in the former
U.S.S.G. § 2G2.4 violated the Sixth Amendment for the first time
in his petition for certiorari. We will not consider Longbine’s
contention “absent extraordinary circumstances.” See United
States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005). Longbine must
“show a possibility of injustice so grave as to warrant disregard
of usual procedural rules.” See id. at 384 (internal quotation
marks and citation omitted). If Longbine cannot demonstrate
No. 04-10438
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plain error, he cannot satisfy the more demanding “extraordinary
circumstances” test. See id. at 383-84.
Longbine raises his contentions that the adjustments based
on the depiction of prepubescent minors and the use of a computer
violated the Sixth Amendment for the first time in his
supplemental brief following remand by the Supreme Court. We
agree with other persuasive authority of our circuit that, “[a]s
a minimum, [the defendant] must demonstrate extraordinary
circumstances in order for this court to consider an issue raised
for the first time on remand from the Supreme Court.” See United
States v. Valenzuela-Luna, No. 04-50190, 2005 WL 2404809, at *1
(5th Cir. Sept. 30, 2005).
Longbine has failed to demonstrate reversible plain error
regarding the adjustment for the nature of his images and has
failed to demonstrate extraordinary circumstances regarding each
of the other issues on appeal. It is true that the district
court’s comments at the sentencing hearing suggested that the
district court was concerned about the fairness of using U.S.S.G.
§ 2G2.2 to calculate Longbine’s offense level. However, the
district court did not indicate that using that section would be
unfair, nor did the district court indicate that it would have
imposed a lower sentence under an advisory guideline sentencing
scheme. See Mares, 402 F.3d at 522. Accordingly, Longbine has
failed to carry his burden of demonstrating that his sentence
likely would have been different had the district court sentenced
No. 04-10438
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him under the post-Booker advisory regime rather than the pre-
Booker mandatory regime. See id. at 521.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Longbine’s conviction and
sentence.
AFFIRMED.