United States v. Avila-Chavez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2005
Charles R. Fulbruge III
Clerk
No. 03-40786
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL AVILA-CHAVEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-59-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Juan Manuel Avila-Chavez
(“Avila”). See United States v. Avila-Chavez, No. 03-40786 (5th
Cir. Feb. 18, 2004). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125 S.
Ct. 738 (2005). We requested and received supplemental letter
briefs addressing the impact of Booker.
The Government argues that this appeal is moot because Avila
was released from prison and deported back to Mexico on December
*
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this opinion should not be published and is not precedent except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. 03-40786
-2-
27, 2004. Avila argues that his appeal “still presents a live
issue” because he is on supervised release until December 27,
2005. Article III, § 2 of the Constitution requires that a
“‘case-or-controversy . . . subsist[] through all stages of
federal judicial proceedings, trial and appellate.’” See Spencer
v. Kemna, 523 U.S. 1, 7 (1998); see also United States v. Clark,
193 F.3d 845, 847 (5th Cir. 1999). This requirement is met
because Avila is still subject to supervised release, a part of
his total sentence. See United States v. Gonzalez, 250 F.3d 923,
928 (5th Cir. 2001).
Avila’s argument that the district court’s mandatory
application of the guidelines “is structural, or at least
presumptively prejudicial, thus obviating the need for a specific
showing of prejudice” has been rejected as inconsistent with this
court’s analysis in United States v. Mares, 402 F.3d 511 (5th
Cir.), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
See United States v. Martinez-Lugo, ___ F.3d ___, No. 04-40478,
2005 WL 1331282 *2 (5th Cir. June 7, 2005); United States v.
Malveaux, ___ F.3d ___, No. 03-41618, 2005 WL 1320362 *1 n.9 (5th
Cir. Apr. 11, 2005). Avila’s alternative argument that the
district court’s mandatory application of the guidelines
constitutes plain error also lacks merit. This court will not
consider a Booker-related challenge raised for the first time in
a petition for certiorari absent extraordinary circumstances.
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005)(5th
No. 03-40786
-3-
Cir. 2005). Avila identifies “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)); Mares, 402 F.3d at 521-22. The fact that the district
court imposed the minimum sentence under the guideline range
“alone is no indication that the judge would have reached a
different conclusion under an advisory scheme.” See United
States v. Bringier, 405 F.3d 310, 317-18 n.4 (5th Cir.
2005)(citing Mares, 402 F.3d at 521-22). Because Avila has not
demonstrated plain error, “it is obvious that the much more
demanding standard for extraordinary circumstances, warranting
review of an issue raised for the first time in a petition for
certiorari, cannot be satisfied.” See Taylor, 409 F.3d at 677.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Avila’s conviction and sentence.
AFFIRMED.