United States v. Jackson

141 F. App'x 286

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court affirmed Roosevelt Jackson’s guilty-plea conviction for distribution of 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and his 188-month sentence. United States v. Jackson, 101 Fed.Appx. 972 (5th Cir.2004). The Supreme Court granted Jackson’s petition for writ of certiorari and for leave to proceed informa pauperis (IFP); vacated our previous judgment; and remanded the case for further consideration in the light of United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Jackson v. United States, — U.S. -, 125 S.Ct. 1015, 160 L.Ed.2d 1039 (2005). We requested, and received, supplemental briefs addressing the impact of Booker. Having reconsidered our decision pursuant to the Supreme Court’s instructions, we reinstate our judgment affirming the conviction and sentence.

For the first time in his petition for writ of certiorari, Jackson challenged the constitutionality of his sentence, based on the then-recent holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because he was sentenced based on certain facts neither pleaded to, nor found by, a jury. Absent extraordinary circumstances, we will not consider a defendant’s Booker-related claims presented for the first time in a petition for writ of certiorari. United States v. Taylor, 409 F.3d 675, 676-77 (5th Cir.2005).

Jackson has presented no evidence of extraordinary circumstances. Even if such circumstances were not required, because Jackson did not raise his Booker— claims in district court, any review would be only for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005), petition for cert. filed, (U.S. 31 Mar. 2005) (No. 04-9517). Jackson does not contend his claims satisfy plain-error review, as described in Mares, because he makes no attempt in showing any error affected his substantial rights. (Along this line, Jackson contends: the district court committed “structural error” when it sentenced him under a mandatory guidelines system; and prejudice to his substantial rights should therefore be presumed. However, our court has rejected this contention as inconsistent with Mares. See United States v. Malveaux, 128 Fed.Appx. 362, 364 at n. 9 (5th Cir.2005). He raises the Roo&er-issue only in order to preserve it for possible review by the Supreme Court.) In sum, because he fails plain-error review, Jackson falls far short of showing the requisite extraordinary circumstances.

AFFIRMED

* 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.