United States v. Ponce-Sanchez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 26, 2006
• Docket: 04-50790
• Status: Unpublished

Opinion

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.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:03-CR-2087-ALL-FM --------------------

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -2-

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 -3-

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 -4-

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 -5-

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.