United States v. Garza , 135 F. App'x 687 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 17, 2005
Charles R. Fulbruge III
Clerk
No. 03-20937
Conference Calendar
UNITED STATES,
Plaintiff-Appellee,
versus
ROBERTO GARZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-03-CR-94-2)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed Roberto Garza’s 87-month sentence imposed
pursuant to a guilty-plea conviction for possession with intent to
distribute in excess of five kilograms of cocaine. United States
v. Garza, 03-20937, 2004 WL 1418781 (5th Cir. 22 June 2004). The
Supreme Court granted Garza’s petition for writ of certiorari and
for leave to proceed in forma pauperis (IFP); vacated our previous
judgment; and remanded the case for further consideration in 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this opinion should not be published and is not precedent except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.
light of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005). Garza v. United States, 125 S. Ct. 1054 (2005). We
requested, and received, supplemental briefs addressing the impact
of Booker. Having reconsidered our decision pursuant to the
Supreme Court’s instructions, we reinstate our judgment affirming
the sentence.
For the first time in his petition for rehearing en banc,
Garza challenged the constitutionality of his sentence, based on
the then-recent holding in Blakely v. Washington, 542 U.S. ____,
124 S. Ct. 2531 (2004), claiming the district court sentenced him
according to a drug quantity larger than that to which he pleaded.
Absent extraordinary circumstances, we will not consider a
defendant’s Booker-related claims presented for the first time in
a petition for rehearing. United States v. Hernandez-Gonzalez, 405
F.3d 260, 261 (5th Cir. 2005).
Garza has presented no evidence of extraordinary
circumstances. At sentencing, Garza objected to the district
court’s drug quantity calculation as a misinterpretation of the
Guidelines; he did not object on constitutional grounds. Even if
we did not require showing extraordinary circumstances, because
Garza did not raise Booker-related claims in district court, any
review would be only for plain error. See United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed, (U.S.
31 A.K. Marsh. 2005) (No. 04-9517). Garza’s claims would fail the third
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prong of plain-error review because he “cannot carry his burden of
demonstrating that the [sentence] would have likely been different
had the judge been sentencing under the Booker advisory regime
rather than the pre-Booker mandatory regime”. Id. at 522. In sum,
because he fails plain-error review, Garza falls far short of
showing the requisite extraordinary circumstances.
AFFIRMED
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