United States v. Ponce-Sanchez ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2006
Charles R. Fulbruge III
Clerk
No. 04-50790
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO PONCE-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:03-CR-2087-ALL-FM
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Sergio Ponce-Sanchez
(Ponce). United States v. Ponce-Sanchez, 115 F. App’x 741 (5th
Cir.), cert. granted, vacated and remanded, 125 S. Ct. 1952
(2005). The Supreme Court vacated and remanded for further
consideration in light of United States v. Booker, 543 U.S. 220
(2005).
*
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this opinion should not be published and is not precedent except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. 04-50790
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Ponce acknowledges that he challenged the constitutionality
of his sentence on the principles of Booker for the first time in
his petition for writ of certiorari. Absent extraordinary
circumstances, we will not consider a defendant’s Booker-related
claim presented for the first time in a petition for writ of
certiorari. United States v. Taylor, 409 F.3d 675, 676 (5th Cir.
2005). Had Ponce raised his Booker argument in his initial
appellate brief, this court would have reviewed the argument for
plain error. Id. at 677. As in Taylor, Ponce “points to 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)); United States v. Mares, 402 F.3d
511, 521-22 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Indeed, to the contrary, Ponce concedes that he cannot show that
the error affected his substantial rights.
Because Ponce fails plain-error review, he also falls short
of showing the “possibility of injustice so grave as to warrant
disregard of usual procedural rules.” See United States v. Ogle,
415 F.3d 382, 384 (5th Cir.) (internal quotation marks and
citation omitted), cert. denied, 126 S. Ct. 837 (2005).
Accordingly, Ponce has failed to show extraordinary circumstances
warranting consideration of an issue raised for the first time in
a petition for writ of certiorari. Taylor, 409 F.3d at 677.
No. 04-50790
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Ponce argues that the “extraordinary circumstances” standard
of Taylor should not apply to his case because it conflicts with
this court’s use of the plain-error standard in United States v.
Malveaux, 411 F.3d 558 (5th Cir.), cert. denied, 126 S. Ct. 194
(2005). Because Ponce cannot demonstrate reversible plain error,
we need need not address his contention that Taylor conflicts
with Malveaux.
Ponce challenges the plain-error test set out by this court
in Mares, arguing that it is at odds with the tests employed by
other circuits. He further argues that it is improper to
consider whether a district court would impose a different
sentence under an advisory guideline sentencing regime,
contending that Justice Breyer’s remedial opinion in Booker
should not be given retroactive effect. He seeks to preserve his
challenge to the Mares standard for Supreme Court review. We
will not overrule Mares. See United States v. Taylor, 933 F.2d
307, 313 (5th Cir. 1991).
For the first time in his supplemental brief following the
Supreme Court’s remand, Ponce argues that the district court
erred by adjusting his offense level by 16 levels, pursuant to
§ 2L1.2(B)(1)(A)(ii), for a prior conviction for a crime of
violence, based on his Washington state conviction of third-
degree assault of a child. He argues that United States v.
Vasquez-Torres, 134 F. App’x 648 (5th Cir.), cert. denied, 126 S.
Ct. 289 (2005), constitutes intervening law requiring this court
No. 04-50790
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to consider his contention. He further argues that the alleged
error affected his guideline sentencing range, requiring the
contention to be addressed in conjunction with his “Fanfan”
contention.
In United States v. Gracia-Cantu, 302 F.3d 308, 312-13 (5th
Cir. 2002), this court determined that the Texas injury-to-a-
child statute did not give rise to a crime of violence
enhancement under 18 U.S.C. § 16. Vasquez-Torres did not
announce a new rule of law. In rendering the decision in
Vasquez-Torres, we relied on Gracia-Cantu for the proposition
that the court should look only to the statutory elements of the
offense and not to the defendant’s actual conduct when
determining whether the prior conviction was for a crime of
violence. See Vasquez-Torres, 134 F. App’x at 649.
Ponce does not indicate why he could not have raised his
challenge to the 16-level adjustment as an issue in his initial
appellate brief, based on Gracia-Cantu. Ponce therefore has
failed to demonstrate exceptional circumstances that might
warrant consideration of his contention. See Taylor, 409 F.3d at
676.
Ponce reurges his contention that the “felony” and
“aggravated felony” provisions of § 1326(b) are unconstitutional.
He correctly recognizes that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), see
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
No. 04-50790
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denied, 126 S. Ct. 298 (2005), but he raises the argument to
preserve it for further review.
Booker does not require this court to change the prior
affirmance in Ponce’s case. Accordingly, we REINSTATE our
judgment affirming Ponce’s conviction and sentence.