United States v. Richardson , 185 F. App'x 448 ( 2006 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT September 28, 2006
_____________________ Charles R. Fulbruge III
Clerk
No. 03-51000
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACQUELINE O. RICHARDSON,
Defendant-Appellant.
__________________
Appeal from the United States District Court
for the Western District of Texas
(01-CR-233)
__________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
In our previous opinion in this case, we affirmed Defendant-
Appellant Richardson’s conviction and sentence. See United
States v. Richardson, No. 03-40045, 117 Fed. Appx. 931 (5th Cir.
2004) (unpublished). Following judgment, Richardson filed a
petition for certiorari. The Supreme Court granted Richardson’s
petition for certiorari, vacated our judgment, and remanded 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this opinion should not be published and is not precedent except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.
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case to this court for further consideration in light of United
States v. Booker, 543 U.S. 220 (2005). We now reconsider the
matter and decide to reinstate our previous judgment affirming
Richardson’s conviction and sentence.
Following the Supreme Court’s decision in Booker, we
requested supplemental briefing from the parties regarding their
position in light of the Supreme Court’s decision. In response,
Richardson’s counsel filed a motion to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967). The motion asserts
that no non-frivolous argument can be raised because Richardson’s
Booker-related issue was raised for the first time on direct
appeal and the record will not support a finding of plain-error.
Our independent review of the record leads us to conclude that
counsel is correct. Because Richardson did not raise a Booker
objection in the trial court, her Booker claim would fail under
the plain-error test discussed in United States v. Mares, 402
F.3d 511, 520-22 (5th Cir. 2005). There is no indication that
the district court would have imposed a lesser sentence had the
Guidelines been advisory. See United States v. Bringier, 405
F.3d 310, 317-18 (5th Cir. 2005).
Therefore, considering the briefs of counsel, the response
of Appellant Richardson, and our own independent review of the
record in light of Booker, we grant counsel’s motion to withdraw
and dismiss the appeal as frivolous. Our prior disposition
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remains in effect, and we REINSTATE OUR EARLIER JUDGMENT
affirming Richardson’s conviction and sentence.
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