United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 28, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40117
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY T. BOLDING,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-436-ALL
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JOLLY and HIGGINBOTHAM, Circuit Judges.1
PER CURIAM:2
This court affirmed Anthony T. Bolding’s conviction and
sentence. United States v. Bolding, 110 Fed. Appx. 389 (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). Bolding v. United States, 125 S.Ct. 1349 (2005). We
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this opinion should not be published and is not precedent except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.
requested and received supplemental letter briefs addressing the
impact of Booker.
In his supplemental brief, Bolding argues that the district
court’s application of mandatory sentencing guidelines was
reversible plain error. Bolding acknowledges that he did not raise
any Booker-related arguments before the district court or on direct
appeal.3 Instead, he raised the issue for the first time in his
amended petition for writ of certiorari. This court recently 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 writ of certiorari. United States v. Taylor, 409
F.3d 675, 676 (5th Cir. 2005).
Because Bolding 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). There is no plain error because, as Bolding concedes,
there is no evidence in the record indicating that the district
court would have imposed a lesser sentence under advisory
sentencing guidelines. Because Bolding has not shown plain error,
he cannot satisfy “the much more demanding standard for
3
During the pendency of his direct appeal, Bolding filed a pro
se request for judicial notice, seeking the court’s consideration
of the Supreme Court’s decision in Blakely v. Washington, 124 S.Ct.
2531 (2004). This court denied the motion on the ground that
Bolding did not have the right to hybrid representation on direct
appeal.
2
extraordinary circumstances, warranting review of an issue raised
for the first time in a petition for certiorari”. Taylor, 409 F.3d
at 677.
Alternatively, Bolding contends that application of the plain
error standard is inappropriate because it would have been futile
for him to have objected to application of the mandatory guidelines
in the light of Fifth Circuit precedent existing at the time of his
sentencing, or because the remedial portion of Booker was novel and
unforeseeable at the time of his sentencing. As he acknowledges,
these arguments are foreclosed by this court’s decision in Mares.
Finally, Bolding contends that the Booker error was structural
and that prejudice should be presumed. This contention is also
foreclosed by Mares. See United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005); United
States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert. denied,
126 S.Ct. 194 (2005).
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 reinstate our judgment
affirming Bolding’s conviction and sentence.
JUDGMENT REINSTATED.
3