USA v. Ponce-Sanchez

Filing 920060426

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -2Ponce 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. 2005). United States v. Taylor, 409 F.3d 675, 676 (5th Cir.

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 -3Ponce 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 We

challenge to the Mares standard for Supreme Court review. will not overrule Mares. 307, 313 (5th Cir. 1991).

See United States v. Taylor, 933 F.2d

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 thirddegree 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 -4to 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-achild statute did not give rise to a crime of violence enhancement under 18 U.S.C. § 16. announce a new rule of law. Vasquez-Torres did not

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. 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. See Taylor, 409 F.3d at

No. 04-50790 -5denied, 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.