United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 1, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41535
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELA BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-25-2
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court previously dismissed the appeal of Kela Brown as frivolous upon granting her
attorney’s motion to withdraw. United States v. Brown, No. 03-41535 (5th Cir. June 23, 2004)
(unpublished). The Supreme Court vacated and remanded for further consideration in light of United
States v. Booker, 543 U.S. 220 (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 R. 47.5, the court has determined that this opinion should not be published and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. 03-41535
-2-
Brown argues that she was improperly sentenced under the formerly mandatory sentencing
guideline scheme. She contends that there is a likelihood that her sentence would be lower under an
advisory scheme because she should have received the benefit of an adjustment to her offense level
pursuant to U.S.S.G. § 5C1.2, after a departure from her criminal history category from category III
to category II. She also argues that a downward departure based on her status as a single mother
would be appropriate.
Because Brown first raised a Booker issue in her petition for certiorari, we will not consider
her claims “absent extraordinary circumstances.” United States v. Taylor, 409 F.3d 675, 676 (5th
Cir. 2005). Brown cannot demonstrate reversible plain error; she therefore cannot satisfy the more
stringent standard for extraordinary circumstances. See id. at 677. Brown points to nothing in the
record nor any comment in the transcript that indicates the district court would have imposed a lesser
sentence under an advisory regime. United States v. Bringier, 405 F.3d 310, 317 (5th Cir.), cert.
denied, 126 S. Ct. 264 (2005). Accordingly, she has failed to carry her burden on appeal.
AFFIRMED.