United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 2, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-50978
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEYUMBA WEBB,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Austin
USDC No. A-02-CR-301-ALL
_________________________________________________________________
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before JOLLY and WIENER, Circuit Judges.1
PER CURIAM:2
This court affirmed Leyumba Webb’s conviction and sentence.
United States v. Webb, 96 Fed. Appx. 259 (5th Cir. 2004). The
Supreme Court vacated and remanded for further consideration in the
light of United States v. Booker, 125 S.Ct. 738 (2005). Webb v.
United States, 125 S.Ct. 1006 (2005). At this court’s request,
1
Judge Pickering was a member of the original panel but
retired from the Court on December 8, 2004 and, therefore, did not
participate in this decision.
2
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this opinion should not be published and is not precedent except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.
Webb filed a supplemental letter brief addressing the impact of
Booker. The Government filed a motion to reinstate our prior
affirmance of Webb’s conviction and sentence or, alternatively, to
extend the time to file its supplemental letter brief.
In his supplemental brief, Webb argues that the district court
erred by sentencing him under mandatory sentencing guidelines and
by enhancing his sentence on the basis of facts not alleged in the
indictment and found by a jury. He asserts that he preserved a
Booker claim by arguing during his sentencing hearing that the
court should depart downward because “courts have taken the liberty
of adjusting the [sic] downward when they see what could be just an
unreasonable application or some application of the sentencing
guidelines that aren’t rational.” We disagree that this objection
was adequate to preserve a Booker claim. A request for a downward
departure is not the equivalent of an objection to the application
of mandatory Sentencing Guidelines or an objection on Sixth
Amendment grounds. See United States v. Garcia-Rodriguez, 415 F.3d
452 (5th Cir. 2005) (district court had denied defendant’s request
for downward departure, but court reviewed Booker claim for plain
error).
Webb concedes that he did not raise a Booker issue on direct
appeal, but instead did so in his “Supplemental Brief to Petition
for Writ of Certiorari.” This court has held that, in the absence
of extraordinary circumstances, the court will not consider Booker-
related arguments raised for the first time in a petition for a
2
writ of certiorari. United States v. Taylor, 409 F.3d 675, 676
(5th Cir. 2005).
Because Webb did not raise his Booker-related arguments in the
district court, we would have reviewed them for plain error had he
raised them for the first time on direct appeal. United States v.
Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S.Ct. 43
(2005). Under the plain error standard, we may correct an error in
Webb’s sentence only if he demonstrates that “there is (1) error,
(2) that is plain, and (3) that affects substantial rights. If all
three conditions are met an appellate court may then exercise its
discretion to notice a forfeited error but only if (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal citations and quotation marks
omitted). The first two prongs are satisfied here, because Webb
was sentenced based on facts found by the judge but not by the jury
under mandatory Sentencing Guidelines. See United States v.
Creech, 408 F.3d 264, 271-72 (5th Cir. 2005).
To satisfy the third prong of the plain error test, Webb must
show, “with a probability sufficient to undermine confidence in the
outcome, that if the judge had sentenced him under an advisory
sentencing regime rather than a mandatory one, he would have
received a lesser sentence.” United States v. Infante, 404 F.3d
376, 394-95 (5th Cir. 2005). Webb argues that the following
circumstances indicate that there is a “possibility” of a lower
sentence under advisory Guidelines:
3
(1) the district court observed at sentencing that, “based on
a rather peculiar quirk in the guidelines which provide that if
someone has two or more convictions of a certain kind and is
convicted of a drug offense, then the guidelines classify him or
her as a career offender and the guidelines jump way up”;
(2) the district court recognized the rather small quantity of
drugs at issue in this case -- just over three grams;
(3) the district court noted that Webb was only 19 years old
when he was convicted of deadly conduct (one of the prior offenses
supporting the career offender enhancement)
(4) the district court’s imposition of the lowest possible
sentence under the Guidelines indicates a willingness to impose an
even lower sentence under a non-mandatory interpretation of the
Guidelines;
(5) the statutory directive to sentencing courts to avoid
unwarranted sentencing disparities, 18 U.S.C. § 3553(a)(6),
indicates the possibility that his sentence would be less if the
court remanded for resentencing because the 1-100 quantity ration
of cocaine-base to cocaine powder in the Guidelines leads to
unwarranted sentencing disparity; and
(6) the Sentencing Commission has recognized that the career
offender provision has a disparate impact on minority defendants
that is not justified by recidivism rates because it includes drug
trafficking crimes as criteria for its application.
4
Webb has not demonstrated “that the result would have likely
been different had the judge been sentencing under the Booker
advisory regime rather than the pre-Booker mandatory regime.”
Mares, 402 F.3d at 522. See Creech, 408 F.3d at 272 (sentencing
judge’s explanations of mandatory nature of the Guidelines and
summary of sentencing law is not indicative of judge’s desire to
sentence differently under advisory Guidelines); United States v.
Bringier, 405 F.3d 310, 317-18 & n.4 (5th Cir.) (sentencing judge’s
acknowledgment that sentence was “harsh”, and fact that sentencing
judge imposed minimum sentence under guideline range is not an
“indication that the judge would have reached a different
conclusion under an advisory scheme”), cert. denied, 126 S.Ct. 264
(2005); see also United States v. Hernandez-Gonzalez, 405 F.3d 260,
262 (5th Cir.) (fact that defendant received minimum sentence under
Guidelines, and evidence that defendant suffered from alcohol abuse
problem that was responsible for much of his criminal history and
that he returned illegally to the United States to earn money for
his family in Honduras was insufficient to demonstrate that
sentencing judge would have imposed lower sentence under advisory
guidelines), cert. denied, 126 U.S. 202 (2005).
Webb cannot show that his substantial rights were affected by
the Booker errors, and thus he cannot satisfy the plain error
standard. It necessarily follows that he cannot satisfy “the much
more demanding standard for extraordinary circumstances, warranting
5
review of an issue raised for the first time in a petition for
certiorari.” Taylor, 409 F.3d at 677.
For the foregoing reasons, we conclude that nothing in the
Supreme Court’s Booker decision requires us to change our prior
affirmance in this case. We therefore GRANT the Government’s
motion to reinstate our judgment affirming Webb’s conviction and
sentence, and DENY as unnecessary its alternative motion for an
extension of time to file its supplemental letter brief.
JUDGMENT REINSTATED.
6