United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-10185
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELBERT ALAN HALE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-65-ALL-A
_________________________________________________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and
sentence of Elbert Alan Hale. United States v. Hale, No. 04-10185
(5th Cir. Jan. 10, 2005). The Supreme Court vacated and remanded
for further consideration in light of United States v. Booker,
125 S. Ct. 738 (2005). See Hale v. United States, 125 S. Ct. 2309
(2005). We requested and received supplemental letter briefs
addressing the impact of Booker.
At trial and on direct appeal, Hale objected to the
*
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should not be published and is not precedent except under the limited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.
imposition of a two-level enhancement for obstruction of justice,
contending only that the enhancement was improper under the factual
circumstances presented to the district court. At no time until
his petition for certiorari did Hale object on either of the
grounds addressed in Booker, i.e., (i) a Sixth Amendment violation
resulting from an enhancement of a sentence based on facts (other
than a prior conviction) found by the sentencing judge, which were
not admitted by the defendant or found by the jury; or (ii) that
the Sentencing Guidelines were unconstitutional because they were
mandatory and not advisory. Absent extraordinary circumstances, we
will not consider Booker issues raised for the first time in a
petition for certiorari. United States v. Taylor, 409 F.3d 675,
676 (5th Cir. 2005).
However, even if we were to review for plain error, Hale
could not satisfy his burden of proving reversible plain error on
the basis that his sentence was applied under an unconstitutional
mandatory sentencing scheme because there is nothing in the record
to suggest that the district court would have sentenced Hale
differently under an advisory scheme. See United States v. Mares,
402 F.3d 511, 521 (5th Cir. 2005), cert. denied, 126 S. Ct. 43
(2005). To satisfy his burden, Hale incorrectly points to three
things: 1) the fact that the sentencing judge assessed a sentence
at the bottom of the guideline imprisonment range; 2) the fact
that, absent the Booker error, the guideline imprisonment range
would have been below the 63 month sentence imposed; and 3) the
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fact that the district court explained that although it had “made
the right ruling” regarding the enhancement, it would consider
Hale’s arguments against the imposition of the enhancement to
sentence Hale at the bottom of the guidelines.
We find these arguments unavailing. The mere fact that
Hale was sentenced at the bottom of the guidelines is probative,
but not sufficient, to demonstrate prejudice. See United States v.
Rodriguez-Gutierrez, No. 04-30451, slip op. at 8 (5th Cir. Oct. 5,
2005); 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). Further, district courts must correctly calculate the
applicable Guideline range even in a post-Booker regime. See
United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir.
2005). A single remark indicating the district court’s
consideration of all the evidence before it is hardly sufficient
for Hale to satisfy his burden of identifying evidence in the
record suggesting that the district court “would have reached a
significantly different result” under an advisory scheme rather
than a mandatory one. United States v. Mares, 402 F.3d 511, 521
(5th Cir. 2005), cert. denied, 126 S. Ct. 43 (2005).
Thus, because Hale cannot even show plain error, it is
clear that this case does not present extraordinary circumstances
warranting our review. We also note that this court has rejected
Hale’s due process and ex post facto challenges. See United States
v. Scroggins, 411 F.3d 572, 575-76(5th Cir. 2005). Because nothing
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in the Supreme Court's Booker decision requires us to change our
prior affirmance in this case, we adhere to our prior determination
and therefore reinstate our judgment AFFIRMING Hale’s conviction
and sentence.
AFFIRMED.
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