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. 04-40286
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICKIE ANGELO BATTEN,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont
USDC No. 1:03-CR-134-ALL
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.
PER CURIAM:1
This court affirmed Nickie Angelo Batten’s conviction and
sentence. United States v. Batten, 112 Fed. Appx. 345 (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). Batten v. United States, 543 U.S. 1182 (2005). We
requested and received supplemental letter briefs addressing the
impact of Booker.
1
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this opinion should not be published and is not precedent except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.
In his supplemental brief, Batten argues that the district
court erred by sentencing him under a mandatory sentencing
guidelines range greater than the range authorized solely by his
own admissions, based upon the district court’s findings made by
only a preponderance of the evidence.2 Batten concedes that he did
not raise a Booker claim on direct appeal, but instead did so for
the first time in his 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 writ of certiorari. United States
v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
Because Batten 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
Batten’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
2
Batten acknowledges that the following contentions are
foreclosed by our precedent, but raises them to preserve them for
further review by the Supreme Court: (1) that the Booker error was
structural or presumptively prejudicial; (2) that this court’s
interpretation of the burden of proof required to prove sentencing
enhancements is incorrect; and (3) that this court should follow
other circuits that have decided to remand all cases for
resentencing regardless of whether Booker error was preserved in
the district court.
2
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 Batten
was sentenced pursuant to a mandatory sentencing guidelines range
based on facts found by the judge but not admitted by him. See
United States v. Creech, 408 F.3d 264, 271-72 (5th Cir. 2005).
To satisfy the third prong of the plain error test, Batten
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). Although Batten argues that the
record in this case shows at least a reasonable probability that,
but for the error, the outcome of the sentencing would have been
different, he concedes that the record contains no statements by
the district court reflecting an inclination to impose a lesser
sentence if the case were remanded.
Because Batten has not shown plain error, he cannot satisfy
“the much more demanding standard for extraordinary circumstances,
warranting 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
3
affirmance in this case. We therefore reinstate our judgment
affirming Batten’s conviction and sentence.
JUDGMENT REINSTATED.
4