United States v. Gooden , 162 F. App'x 294 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 10, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40129
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
COREY GOODEN,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CR-674-1
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This court affirmed Corey Gooden’s conviction and sentence.
United States v. Gooden, 111 Fed. Appx. 297 (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). Gooden v.
United States, 125 S.Ct. 1612 (2005). We requested and received
supplemental letter briefs addressing the impact of Booker.
In his supplemental brief, Gooden argues that his sentence
runs afoul of Booker because he was sentenced pursuant to 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this opinion should not be published and is not precedent except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.
mandatory Guideline scheme found unconstitutional in Booker, and
because his sentence was enhanced based on findings made by the
district court in violation of the Sixth Amendment. He
acknowledges that he did not raise any Booker-related arguments
before the district court or on direct appeal. Instead, he raised
the issue for the first time in his petition for a writ of
certiorari. This court recently 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 Gooden 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). There is no plain error because, as Gooden concedes, there
is no evidence in the record indicating that the district court
would have imposed a lesser sentence under advisory sentencing
guidelines. Because Gooden 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. The
fact that Gooden received a sentence in the middle of the guideline
range does not support an inference that the district court would
have imposed a lower sentence under advisory sentencing guidelines.
2
See United States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.)
(“the fact that the sentencing judge 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”), cert. denied, 126 S.Ct. 264 (2005).
Gooden argues that he should not be required to make a showing
of prejudice because the Booker error was structural or is the type
of error that should be presumed prejudicial. This contention is
foreclosed by Mares. See United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005); United
States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert. denied,
126 S.Ct. 194 (2005).
For the foregoing reasons, we conclude that nothing in the
Supreme Court’s Booker decision requires us to change our prior
affirmance in this case. We therefore reinstate our judgment
affirming Brooks’s conviction and sentence.
JUDGMENT REINSTATED.
3