United States v. Gann

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 8, 2005
Charles R. Fulbruge III
Clerk
No. 03-11116
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LARRY DEAN GANN,
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
(02-CR-13)
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
The Supreme Court vacated the judgment in this case and
remanded it to this Court to reconsider in light of United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). In supplemental
briefing, Gann argues that resentencing is required under Booker
because the district court sentenced him under a mandatory
sentencing scheme. For the following reasons, we reject Gann’s
argument and affirm the judgment of the district court.
*
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this opinion should not be published and is not precedent except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. 03-11116
-2-
Gann admits that he did not challenge the district court’s
use of judicial fact-finding during sentencing until his petition
for panel rehearing before this Court. Because he has not shown
extraordinary circumstances to cure his failure to raise this
issue in district court and on direct appeal, we need not
consider his claim here. United States v. Ogle, ___ F.3d ___,
No. 03-60833, 2005 WL 1503538, *1 (5th Cir. Jun 27, 2005)
(holding that an argument not raised in appellant’s original
brief is waived); United States v. Taylor, 409 F.3d 675, 676 (5th
Cir. 2005).
Even if Gann had shown extraordinary circumstances such that
his claim could be considered here, review of his claim is
limited to a review for plain error. United States v. Mares, 402
F.3d 511, 520-22 (5th Cir.2005). Thus, Gann must show that there
is (1) error, (2) that is plain, and (3) that affects substantial
rights where appellant did not raise a challenge to his sentence
before the district court. Id. In light of Booker, we agree that
the use of a mandatory sentencing scheme is clear and obvious
error. However, Gann’s claim fails because he has not shown that
the error affected his substantial rights. Gann acknowledges
that there is nothing in the record to show, and Gann has
otherwise failed to show, that the district court would have
imposed a lower sentence under an advisory sentencing scheme
rather than a mandatory one. Id. at 522.
Accordingly, the judgment of the district court is AFFIRMED.