United States v. McTizic

139 F. App'x 635

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 26, 2005
• Docket: 03-11169
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court affirmed Paulette McTizic’s conviction for bank fraud, in violation of 18 U.S.C. § 1344, and her 77-month sentence. United States v. McTizic, 111 Fed.Appx. 255 (5th Cir.2004). The Supreme Court granted McTizic’s petition for writ of eer tiorari and for leave to proceed in forma pauperis (IFP); vacated our 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). McTizic v. United States, — U.S.-, 125 S.Ct. 1682, 161 L.Ed.2d 473 (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 her petition for rehearing, McTizic challenged the constitutionality of her 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). Absent extraordinary circumstances, we will not consider a defendant’s Booker-related claims presented for the first time in a petition for rehearing. United States v. Hernandez-Gonzalez, 405 F.3d 260, 261 (5th Cir.2005).

McTizic has presented no evidence of extraordinary circumstances. Even if showing such circumstances was not required, because she did not raise her 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). Her claims would fail the third prong of plain-error review because she does not show any error affected her substantial rights; she makes no “showing that the error ... affected the outcome of the district court proceedings”. Id. at 521 (quotation omitted). In sum, because she fails plain-error review, McTizic 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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.