                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                   June 20, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 04-50018
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

          DAVID HIGGINBOTHAM,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
       for the Western District of Texas
            m SA-02-CR-144-ALL
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before DAVIS, SMITH, and DENNIS,                          reversal.
  Circuit Judges.
                                                             Higginbotham acknowledges that the plain
PER CURIAM:*                                              error standard of review applies because did
                                                          not preserve a Sixth Amendment error. See
   This court affirmed David Higginbotham’s               United States v. Mares, 402 F.3d 511, 520
conviction. United States v. Higginbotham,                (5th Cir. 2005), petition for cert. filed (Mar.
113 Fed. Appx. 641 (5th Cir. 2004) (per cur-              31, 2005) (No. 04-9517). “An appellate court
iam). He raised no sentencing issues in his               may not correct an error the defendant failed
appeal to this court. The Supreme Court                   to raise in the district court unless there is ‘(1)
vacated and remanded for further consider-                error, (2) that is plain, and (3) that affects
ation in light of United States v. Booker, 125            substantial rights.’” Id. (quoting United States
S. Ct. 738 (2005). Higginbotham v. United                 v. Cotton, 535 U.S. 625, 631 (2002)).
States, 125 S. Ct. 1749 (2005). We requested
and received supplemental letter briefs ad-                   The problem with this approach, as Higgin-
dressing the impact of Booker.                            botham recognizes in his supplemental letters,
                                                          is that the error was raised for the first time in
                        I.                                his petition for writ of certiorari. In United
    In his appeal to this court, Higginbotham             States v. Taylor, No. 03-10167, 2005 U.S.
did not raise any sentencing issues. After                App. LEXIS 8701, at *3 (5th Cir. May 17,
Booker was announced, he filed a petition for             2005), we held that “absent extraordinary
writ of certiorari raising, for the first time in         circumstances,” we will not “consider an
any forum, Booker-related sentencing issues.              argument raised for the first time in a petition
Specifically, Higginbotham argues in his sup-             for [writ of] certiorari.”
plemental letter brief on remand that under the
guidelines that were considered mandatory at                 Higginbotham responds that Taylor “is
the time of his sentencing, the government’s              neither controlling nor persuasive,” because,
choice to charge the quantity of 150 grams of             Higginbotham reasons, Taylor is wrongly
heroin, instead of some lesser amount, man-               decided, for the reason that in Taylor “the
dated a sentence that was unfairly high. He               Supreme Court . . . ordered . . . reconsidera-
relies on comments from the district judge                tion” in light of Booker. Thus, Higginbotham
that, he claims, show that the judge thought              urges, “[t]he court of appeals may have discre-
the resulting sentence to be excessive but                tion to decline, in light of intervening law, to
required by the guidelines. This, Higgin-                 revisit cases on its own; it does not have
botham asserts, is plain error that requires              similar discretion when reconsideration is
                                                          ordered by the higher court.” (Higginboth-
                                                          am’s emphasis, footnotes omitted.)
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                            In Taylor, this court has already addressed
termined that this opinion should not be published
and is not precedent except under the limited cir-
                                                          Higginbotham’s contention. In particular, the
cumstances set forth in 5TH CIR. R. 47.5.4.               Taylor panel cited with approval United States

                                                      2
v. Ardley, 273 F.3d 991 (11th Cir. 2001) (en             judge at sentencing. The court felt compelled,
banc), as “holding that even a remand by the             under the then-mandatory guidelines, to im-
Supreme Court for reconsideration in light of            pose a sentence of 97 months’ imprisonment,
an intervening [Supreme] Court opinion does              which was at the bottom end of the applicable
not require the court to consider an argument            guideline range. The government urged a
raised for the first time in a petition for [writ]       higher sentence. To that the judge replied, “I
of certiorari.” Taylor, 2005 U.S. App. LEXIS             mean 97 months is quite a bit of time already.
8701, at *3. Taylor is binding precedent in this         Plus he has lost his job [as a prison guard]. It
court; the fact that a party disagrees with that         is not likely he will be hired in that capacity
authority makes it no less so.                           again.”

                        II.                                  We reject the notion that the court was
     Resourcefully, Higginbotham proceeds to             indicating, by this, that it would have given a
argue, in the alternative, that even conceding           lower sentence under an advisory regime. As
that Taylor is valid as Fifth Circuit precedent,         we have said, the court’s comment was in
it is distinguishable. Higginbotham accurately           response to the prosecutor’s request for a sen-
observes that the Taylor panel went on to                tence greater than 97 months; it does not
examine whether the defendant had satisfied              necessarily reflect a view that 97 months was
the “extraordinary circumstances” test for               itself unfair.
raising Booker error for the first time in a
certiorari petition.                                         Under Mares, Higginbotham has not shown
                                                         that the result under an advisory scheme would
   Assuming there is plain error under Booker,           have been “significantly different.” Mares,
the third prong of the plain-error test requires,        402 F.3d at 521. “There is no indication in the
under Mares, that “the defendant rather than             record from the sentencing judge’s remarks or
the government bears the burden of persuasion            otherwise that gives us any clue as to whether
with respect to prejudice.” Mares, 402 F.3d at           [the judge] would have reached a different
521 (citing United States v. Olano, 507 U.S.             conclusion.” Id. at 522. As far as we can tell
725, 734 (1993)). To show that his substantial           from the remarks on which Higginbotham
rights are affected, Higginbotham would have             relies, it is at least equally plausible that the
to “point[] to . . . evidence in the record sug-         district judge thought the sentence of 97
gesting that the district court would have im-           months was “just right,” “not too little and not
posed a lesser sentence under an advisory                too much.”
guidelines system.” Taylor, 2005 U.S. App.
LEXIS 8701, at *4 (citations omitted). In oth-               Accordingly, Higginbotham has not satis-
er words, “the pertinent question is whether             fied the third prong of the plain error stan-
[the defendant] demonstrated that the sentenc-           dard. Even if he had done so, we would have
ing judgeSSsentencing under an advisory                  to consider whether he had met what the
scheme rather than a mandatory one SSwould               Taylor panel calls “the much more demanding
have reached a significantly different result.”          standard for extraordinary circumstances,
Mares, 402 F.3d at 521.                                  warranting review of an issue raised for the
                                                         first time in a petition for [writ of] certiorari.”
   To meet this test, Higginbotham, appropri-            Taylor, 2005 U.S. App. LEXIS 8701, at *4.
ately, refers to a statement made by the district        We do not need to reflect on whether

                                                     3
Higginbotham has shown “extraordinary cir-
cumstances,” but if we were to do so, we like-
ly would conclude that his 97-month sentence
falls far short of that.

   The judgment of conviction is AFFIRMED
for the reasons stated in our initial opinion.
For the reasons set forth in this opinion on
remand, the judgment of sentence is also
AFFIRMED. All pending motions are DE-
NIED.




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