United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10637
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JIMMY TODD,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
(02-CR-99)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS and BARKSDALE, Circuit Judges.*
PER CURIAM:**
In our previous opinion in this case, we affirmed Defendant-
Appellant Todd’s conviction and sentence, and found no error in
interpretation or application of the sentencing guidelines. See
*
This appeal is being decided by a quorum due to the death
of Judge Reynaldo G. Garza.
**
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this opinion should not be published and is not precedent except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.
-1-
United States v. Todd, No. 03-10637, 100 Fed. Appx. 248 (5th Cir.
2004)(unpublished). Following our judgment, Todd filed a petition
for certiorari, in which he challenged for the first time the
constitutionality of the Sentencing Guidelines as applied to him.
The Supreme Court granted Todd’s petition for 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). We now reconsider the matter in light of Booker and decide
to reinstate our previous judgment affirming Todd’s conviction and
sentence.
Appellant concedes that he raised a Booker/ Blakely objection
for the first time in his certiorari application. Because Todd did
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. Taylor, No. 03-
10167, 409 F.3d 675, at 676 (5th Cir. May 17, 2005). Our cases
make it clear that an argument not raised in appellant’s original
brief as required by FED. R. APP. P. 28 is waived.3 Appellant argues
3
See Procter & Gamble Co. v. Amway Corp., 376 F.3d 496,
499 (5th Cir. 2004)(party waived argument not included in
original brief to panel); Yokey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). See also 16A C. WRIGHT, A. MILLER & E. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3974.1 at 501 (1999)(issues not
raised in appellant’s initial brief normally will not be
considered by the court); FED. R. APP. P. 28 (a)(9)(A) which
states that an appellant’s brief must contain “appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies.”
-2-
that under a plain error standard, he can show that the district
court would have imposed a lighter sentence had the Judge known the
guidelines were advisory. United States v. Mares, 402 F.3d 511,
520-22 (5th Cir. 2005). Even if appellant can make this showing
and 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.” McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir. 1984)
(footnote omitted).
Todd also argues that application of Justice Breyer’s remedial
opinion in Booker would strip him of his constitutional protections
against ex post facto laws. He explains that Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) gave him the right to
a jury trial on all facts essential to his sentence and Justice
Breyer’s remedial opinion in Booker stripped that right away. In
United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005),
we rejected that argument and held that Booker required us to apply
both Justice Stevens’ merits opinion and Justice Breyer’s remedial
opinion in Booker to all cases such as this one on direct review.
For the reasons stated above, our prior disposition remains in
effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Todd’s
conviction and sentence.
-3-