United States v. West

149 F. App'x 261

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 20, 2005
• Docket: 04-10332
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

The Supreme Court granted Appellant West’s petition for writ of certiorari, vacated our judgment in this case, and remanded it to us for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Previously, we affirmed West’s conviction and sentence. See United States v. West, 114 Fed. Appx. 159 (5th Cir.2004), vacated by — U.S. —, 125 S.Ct. 1867, 161 L.Ed.2d 717 (2005). Following our judgment, West filed a petition for certiorari, challenging for the first time the constitutionality of the federal Sentencing Guidelines as applied in his case. After reconsidering our decision in light of Booker, we reinstate our prior judgment affirming West’s conviction and sentence.

We will not consider arguments 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). Since West’s case features none, we will not consider his Booker arguments.

Alternatively, we note that West concedes in his certiorari petition that he did not preserve the Booker error at trial. Thus, even if we were to consider his Booker-based argument, we would still deny relief as West could not survive the plain error review mandated by United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005).

Accordingly, we reinstate our judgment affirming West’s conviction and sentence.

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.