Filed: Nov. 30, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 30, 2005 Charles R. Fulbruge III Clerk No. 03-20639 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NORMAN ALAN MCDONNELL, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-716-ALL - ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JONES, BENAVIDES, and CLEMENT, Circuit J
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 30, 2005 Charles R. Fulbruge III Clerk No. 03-20639 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NORMAN ALAN MCDONNELL, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-716-ALL - ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JONES, BENAVIDES, and CLEMENT, Circuit Ju..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2005
Charles R. Fulbruge III
Clerk
No. 03-20639
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NORMAN ALAN MCDONNELL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-716-ALL
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed Norman Alan McDonnell’s sentence for his
guilty-plea conviction of one count of possession of a firearm by
a convicted felon. See United States v. McDonnell, No. 03-20639
(5th Cir. Feb. 12, 2004). The Supreme Court granted McDonnell’s
petition for a writ of certiorari, vacated our previous judgment,
and remanded the case for further consideration in light of United
States v. Booker,
125 S. Ct. 738 (2005). See McDonnell v. United
*
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opinion should not be published and is not precedent except under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. 03-20639
-2-
States, 125 S. Ct. 1937 (2005). This court has received
supplemental briefs addressing Booker’s impact.
McDonnell contends that he is entitled to resentencing because
the district court erred under Booker by enhancing his sentence
based on judicially-determined facts, in violation of the Sixth
Amendment, and by sentencing him under a mandatory application of
the United States Sentencing Guidelines. This court will not
consider a Booker-related challenge raised for the first time in a
petition for certiorari absent extraordinary circumstances. See
United States v. Taylor,
409 F.3d 675, 676 (5th Cir. 2005).
To the extent that McDonnell argues that the remedial holding
of Booker, which rendered the Sentencing Guidelines effectively
advisory, should not be applied in his case, his contention runs
directly counter to Booker’s determination that both the Sixth
Amendment holding and the remedial holding must be applied to all
cases on direct review, and is therefore foreclosed. See
Booker,
125 S. Ct. at 769. McDonnell seeks to preserve for further review
contentions that Booker errors are structural, presumptively
prejudicial, and reversible per se. We reject these claims because
they conflict with the applicable standard of review for Booker
errors, as set forth in United States v. Mares,
402 F.3d 511, 520-
21 (5th Cir. 2005), cert. denied, --- U.S. ----,
126 S. Ct. 43
(2005). See United States v. Malveaux,
411 F.3d 558, 561 n.9 (5th
Cir. 2005), cert. denied,
126 S. Ct. 194 (2005).
No. 03-20639
-3-
McDonnell contends that he can show plain error resulting from
the district court’s Sixth Amendment violation because the evidence
allegedly supporting the application of sentence enhancements was
vigorously contested and was not sufficient to establish the facts
necessary to enhance his sentence beyond a reasonable doubt.
However, under Mares, in order to establish that Sixth Amendment
error affected his substantial rights, as required under the plain
error standard, McDonnell must demonstrate “that the sentencing
judge--sentencing under an advisory scheme rather than a mandatory
one--would have reached a significantly different result.”
Mares,
402 F.3d at 520 n.9. Here, there is no showing of plain error
because McDonnell identifies “no evidence in the record suggesting
that the district court would have imposed a lesser sentence under
an advisory guidelines system.”
Taylor, 409 F.3d at 677. Given
that plain error has not been shown, “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.”
Id.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming McDonnell’s sentence.
AFFIRMED.