United States v. Montalvo-Nunez , 153 F. App'x 252 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 19, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 04-40330
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
Miguel Angel Montalvo-Nunez,
Defendant-Appellant,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-755-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Miguel Angel Montalvo-Nunez pleaded guilty to one count of
possession with the intent to distribute 96.6 kilograms of marijuana
in violation of 21 U.S.C. § 841(a)(1)&(b)(1)(C). Pursuant to his
guilty-plea conviction, the district court sentenced Montalvo-Nunez
to forty-one months of imprisonment, to be followed by three years
*
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this opinion should not be published and is not precedent except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.
of supervised release. This Court affirmed Montalvo-Nunez’s
judgment of conviction. United States v. Montalvo-Nunez, 111 F.
App’x. 779 (5th Cir. 2004). Montalvo-Nunez filed a petition for
certiorari. The Supreme Court granted Montalvo-Nunez’s petition,
vacated this Court’s judgment, and remanded the case for
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). Montalvo-Nunez v. United States, 125 S. Ct. 1683 (2005).
We requested and received supplemental letter briefs addressing the
impact of Booker and United States v. Mares, 402 F.3d 511 (5th Cir.
2005).
On remand, Montalvo-Nunez argues that the district court’s
belief that the sentencing guidelines were mandatory constituted
error. Montalvo-Nunez advanced this argument for the first time in
his petition for certiorari. Absent extraordinary circumstances,
we will not consider a Booker-related claim when it is presented for
the first time in a writ of certiorari. United States v. Taylor,
409 F.3d 675, 676 (5th Cir. 2005). Montalvo-Nunez has presented no
evidence of extraordinary circumstances which would enable him “to
show a ‘possibility of injustice so grave as to warrant disregard
of usual procedural rules.’” United States v. Ogle, 415 F.3d 382,
383-84 (5th Cir. 2005)(quoting McGee v. Estelle, 722 F.2d 1206, 1213
(5th Cir. 1984)).
Even if showing such extraordinary circumstances were not
required, because Appellant did not raise his Booker-related claims
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in district court, any review would be for plain error. See Mares,
402 F.3d at 520. In order to establish plain error, Montalvo-Nunez
must show: (1) error, (2) that is clear and obvious, and (3) that
affects substantial rights. Id.; United States v. Infante, 404 F.3d
376, 394 (5th Cir. 2005). “‘If all three conditions are met an
appellate court may then exercise its discretion to notice a
forfeited error but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’”
Mares, 402 F.3d at 520 (quoting United States v. Cotton, 535 U.S.
625, 631 (2002)).
Montalvo-Nunez acknowledges that, under Mares, his claim fails
at the third step of the plain error analysis because he cannot
demonstrate that the alleged error affected his substantial rights.
However, Appellant contends that because the district court
committed “structural error” by sentencing him under a mandatory
Guidelines regime, prejudice to his substantial rights should be
presumed. This Court has rejected that contention as inconsistent
with Mares. United States v. Malveaux, 411 F.3d 558, 550 n.9 (5th
Cir. 2005), petition for cert. filed (U.S. July 11, 2005)(No. 05-
5297). Moreover, there is no indication in the record that the
district court would have imposed a lower sentence if the Guidelines
had been advisory. See Infante, 404 F.3d at 394-95. Hence,
Montalvo-Nunez cannot carry his “burden of demonstrating that the
result would have likely been different had the judge been
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sentencing under the Booker advisory regime rather than the pre-
Booker mandatory regime.” Mares, 402 F.3d at 522.
Because Appellant fails to demonstrate either plain error or
extraordinary circumstances, we reinstate our prior opinion
affirming Montalvo-Nunez’s conviction and sentence.
AFFIRMED.
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