United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 1, 2005
Charles R. Fulbruge III
Clerk
No. 03-41068
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY LYNN JOHNSON; REISA LYNN PETTIETTE,
Defendants-Appellants.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CR-83-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the convictions and sentences of Tommy
Lynn Johnson and Reisa Lynn Pettiette. United States v. Johnson,
No. 03-41068 (5th Cir. Aug. 3, 2004) (unpublished). The Supreme
Court vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). See Johnson v.
United States, 125 S. Ct. 1090 (2005); Pettiette v. United States,
*
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opinion should not be published and is not precedent except under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. 03-41068
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125 S. Ct. 1093 (2005). We requested and received supplemental
letter briefs addressing the impact of Booker.
Pettiette argues that we should vacate her convictions and
sentences and remand her case to the district court for a new trial
because the Supreme Court’s remand order, by vacating our
affirmance of her convictions and sentences, also vacated the
district court’s judgment against her. Following the grant of
certiorari, this case was remanded to this court “for further
consideration in light of United States v. Booker.” Pettiette, 125
S. Ct. at 1093. When a case is remanded to this court from the
Supreme Court in limited terms, we must confine our review to
matters within those limitations. “Except that which we are
mandated to review, our previous rulings are the law of the case
and will not now be reconsidered.” Gradsky v. United States, 376
F.2d 993, 996 (5th Cir. 1967). This issue is without merit.
Alternatively, Pettiette argues that she is entitled to
resentencing because the district court enhanced her sentence based
on judge-found facts in violation of the Sixth Amendment. She
acknowledges that she did not raise an objection based upon Booker
or Blakely v. Washington, 542 U.S. 296 (2004), prior to her earlier
petition for rehearing in this court. We do not consider Booker
claims raised for the first time in a petition for rehearing absent
extraordinary circumstances. United States v. Hernandez-Gonzalez,
405 F.3d 260, 261 (5th Cir. 2005), cert. denied, --- U.S. ----, 126
S. Ct. 202 (2005).
No. 03-41068
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Pettiette “points to no remarks made by the sentencing judge
that raise a reasonable probability that the judge would have
imposed a different sentence under an advisory scheme.” Id. at
262; see also United States v. Mares, 402 F.3d 511, 521-22 (5th
Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 43 (2005).
Accordingly, she has not shown that her sentence is plainly
erroneous. See Hernandez-Gonzalez, 405 F.3d at 262. Because she
has not demonstrated plain error, the more demanding standard for
extraordinary circumstances cannot be met. See id.
Johnson argues that he is entitled to resentencing because the
district court enhanced his sentence based upon judge-found facts
in violation of the Sixth Amendment. He acknowledges that he did
not raise an objection based upon Booker or Blakely prior to his
earlier petition for rehearing. While the sentencing court
arguably committed plain error, Johnson has not shown “a
possibility of injustice so grave as to warrant disregard of usual
procedural rules.” United States v. Ogle, 415 F.3d 382, 384 (5th
Cir. 2005) (quotation omitted). Accordingly, he has not met the
standard for extraordinary circumstances. See id.
Johnson further argues that Booker allows for the imposition
of a lesser sentence than the 25-year consecutive statutory minimum
sentence he received for his conviction on the second count of
possession of a firearm during the commission of a drug trafficking
offense. He maintains that Booker allows for the imposition of a
lesser sentence because there is not a strong connection between
No. 03-41068
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his real conduct and the severe sentence he received. Citing
United States v. Harris, 397 F.3d 404, 413-14 (6th Cir. 2005), he
further asserts that he should not be subject to the 25-year
minimum sentence under Booker because the jury did not find all of
the elements necessary for the imposition of that sentence.
The jury convicted Johnson of two counts of possession of a
firearm during the commission of a drug trafficking offense and the
district court sentenced Johnson to the statutory minimum sentences
on those counts. Nothing in Booker allows a district court to
impose a sentence below the statutory minimum. See Booker, 125 S.
Ct. at 746-69. The Sixth Circuit’s decision in Harris is not
applicable to this case because it addressed the impact of Booker
on sentences under 18 U.S.C. § 924(c)(1)(B)(i), while Johnson was
sentenced to the statutory minimum sentence of 25 years of
imprisonment under 18 U.S.C. § 924(c)(1)(C)(i). The only required
element of 18 U.S.C. § 924(c)(1)(C)(i) that the jury did not find
was the fact of Johnson’s prior conviction, and Booker does not
prohibit the enhancement of sentences on this basis. See Booker,
125 S. Ct. at 756; United States v. Guevara, 408 F.3d 252, 261 (5th
Cir. 2005).
Johnson’s and Pettiette’s convictions are AFFIRMED for the
reasons stated in our initial opinion. For the reasons set forth
in this opinion on remand, their sentences are also AFFIRMED.