United States v. Valenzuela-Luna , 152 F. App'x 335 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-50190
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JAVIER VALENZUELA - LUNA
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-1897-1-PRM
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Javier Valenzuela-Luna
(“Valenzuela”). United States v. Valenzuela-Luna, No. 04-50190,
2004 WL 2931320 (5th Cir. Dec. 17, 2004). The Supreme Court
vacated and remanded for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). We received
supplemental briefs addressing Booker’s impact.
*
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this opinion should not be published and is not precedent except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. 04-50190
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Valenzuela acknowledges that he challenged the
constitutionality of his sentence on the principles of Booker for
the first time in his petition for writ of certiorari. Absent
extraordinary circumstances, we will not consider a defendant’s
Booker-related claim presented for the first time in a petition
for writ of certiorari. United States v. Taylor, 409 F.3d 675,
676 (5th Cir. 2005). Had Valenzuela raised his Booker argument
in his initial appellate brief, this court would have reviewed
the argument for plain error. Id. at 677. As in Taylor,
Valenzuela “points to no evidence in the record suggesting that
the district court would have imposed a lesser sentence under an
advisory guidelines system.” Id. (citing United States v.
Hernandez-Gonzalez, 405 F.3d 260, 261 (5th Cir. 2005); United
States v. Mares, 402 F.3d 511, 521-22 (5th Cir.), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517). Indeed, to the
contrary, Valenzuela concedes that he cannot show that the error
affected his substantial rights.
Because Valenzuela fails plain-error review, he also falls
short of showing the “possibility of injustice so grave as to
warrant disregard of usual procedural rules.” See United States
v. Ogle, __ F.3d __, No. 03-60833, 2005 WL 1503538, at *1 (5th
Cir. June 27, 2005) (internal quotation marks and citation
omitted). Accordingly, Valenzuela has failed to show
extraordinary circumstances warranting consideration of an issue
No. 04-50190
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raised for the first time in a petition for writ of certiorari.
Taylor, 409 F.3d at 677.
For the first time on remand, Valenzuela challenges the 16-
level enhancement to his sentence, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), for a prior conviction for a crime of
violence. Specifically, Valenzuela argues that the enhancement
was not warranted because his prior Texas conviction for injury
to a child does not constitute a crime of violence. Valenzuela
acknowledges that he is raising this issue for the first time on
remand, but contends that “intervening controlling law” requires
this court to consider the issue. Valenzuela cites to this
court’s recent decision in United States v. Vasquez-Torres, No.
04-41172, 2005 WL 1130282 (5th Cir. May 13, 2005) in support of
his argument.
As a minimum, Valenzuela must demonstrate extraordinary
circumstances in order for this court to consider an issue raised
for the first time on remand from the Supreme Court. Valenzuela
fails to do this. In Vasquez-Torres, 2005 WL 1130282 at *1,
this court determined, by looking at the elements of the crime,
that the Texas offense of injury to a child does not constitute a
crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). As the
Government points out, Vasquez-Torres is an unpublished opinion.
As such, under Fifth Circuit Rule 47.5.4 Vasquez-Torres is not
“controlling law” but rather persuasive authority. Furthermore,
Vasquez-Torres did not announce a new rule of law. It, in fact,
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relied on case law existing at the time Valenzuela filed his
appellant brief. See Vasquez-Torres, 2005 WL 1130282 at *1.
Valenzuela does not explain why he did not challenge the district
court’s 16-level enhancement in his initial appellant brief.
Accordingly, he has failed to demonstrate extraordinary
circumstances warranting consideration of his issue raised for
the first time on remand.
As Valenzuela acknowledges, his argument that his sentence
is unconstitutional because it was enhanced for a prior
conviction under 8 U.S.C. § 1326(b) is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). This court does
not have the authority to overrule Almendarez-Torres. See United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Booker does not require this court to change the prior
affirmance in Valenzuela’s case. Accordingly, we reinstate our
judgment affirming Valenzuela’s conviction and sentence.