United States Court of Appeals

Fifth Circuit



## FILED

July 22, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 04-10099

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### M ARCOS 

### M ENA 

### -V ALERINO 

### ; H ARLES 

### P ORTES 

### H ERRERA



### ,

Defendants-Appellants.



### _______________________

Appeals from the United States District Court

for the Northern District of Texas



### m 4:03-CR-92-2-Y

______________________________

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before D AVIS , S MITH , and D ENNIS

, Circuit Judges.

P ER C URIAM : * This court affirmed the convictions and sentences of Marc o s Mena-Valerino and Harles

* Pursuant to 5 TH C IR. R. 47.5, the court has de-

(continued...) * (...continued)

termined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.2

Herrera. U

nited States v. Mena-Valerino

, 117

Fed. Appx. 335 (5th Cir. 2004) (per curiam).

In re gard to Herrera, the Suprem e Court

vacated and remanded for further consideration in light of United States v. B ooker , 125

S. Ct. 738 (2005). H

errera v. United States

, 125 S. Ct. 1875 (2005). We requested and received supplemental letter briefs from the government and both defendants addressing the

impact of Booker

.

I.

Mena-Valerino did not fi l e a petition for

writ of certiorari. Accordingly, the order of

the Supreme Court vacating and remanding in

the wake of Booke r is in regard only to Herrera’s certiorari petition, Supreme Court No.

04-9113. S ee United States v. Tippett

, 975

F.2d 713, 719 (10th Cir. 1992).

Mena-Valerino’ s counsel now files a motion for recall of the mandate and to supplement the record. In his supplemental letter

brief, Mena-Valerino’s attorney states that he

advised his client “to file a petition for rehearing and a [certiorari petition, but ] the client

“did not pursue any of these remedies.” Counsel now asks us to reopen the case to consider

the impact of Booker

and related cases.

We deny the motions. By its very terms,

Booker “appl[ies]

. . . to all cases on direct review.” B ooker

, 125 S. Ct. at 769. S ee also In

re Elwood

, 408 F.3d 211 (5th Cir. 2005) (per

curiam) (holding that “

Booker does not apply

retroactively on collateral review”). As the

government notes in its supplemental letter,

Fifth Circuit Rule 41.2 provides that “[o]nce

issued a mandate shall not be recalled except

to prevent inju st ice.” We are justified in recalling a mandate “when a subsequent decision

by the Supreme Court renders a previous

appellate decision demonstrably wrong.”

United States v. Tolliver , 116 F.3d 120, 123 (5th Cir. 1997).

In his motion to recall the mandate, MenaValeri no claims there is error under B ooker

because the district court, rather t han a jury,

made a finding regarding the quantity of drugs

attributable to him. He did in fact make an objection in the district court based on Blakely v.

Washington

, 542 U.S. 296 (2004 )

. He was

sentenced to 180 months, which was in t he

middle of th e guideline range that the district

court calculated, and Mena-Valerino has prov ided no reason to believe that, if given the

opportunity, the district court would calculate

a sentence any differently under an advi sory

sentencing scheme. There is no just reason to

recall the mandate.

II.

In his supplemental letter brief, Herrera acknowledges that he raised no Sixt h Amendment objection in the district court, so our review is for plain error. S ee Un ited States v.

M ares , 402 F.3d 511, 520 (5th Cir. 2005),

petition for cert. filed (Mar. 31, 2005) (No.

04-9517). “An appellate court may not correct an error the defendant failed to raise in the

district court unless there is ‘(1) error, (2) that

is plain, and (3) that affects substantial

rights.’” I

d. (quoting United States v. Cotton

, 535 U.S. 625, 631 (2002)). Moreover, Herrera did not articulate a true Sixth Amendment

claim until he filed his certiorari petition.

We have recently held that “absent extraordinary circumstances, [we will not] consider

an argument raised for the fir s t time in a petition for [writ of] certiorari.” U nited States v.

Taylor

, 409 F.3d 675, 676 (5th Cir. 2005) (per

curiam). There is nothing extraordinary about

Herrera’s sentence, which is 160 months chosen from a guideline range of 151-188 months.

There is no showing that the distri ct court

would have sentenced differently under an ad-3

visory schem

e. Even without the “extraordinary circumstances” requirement, the plain error test from Mares is not met. III.

In summary, as to Mena-Valerino, the

motion to recall the mandate and the motion to

supplement the record are DENIED. As to

Herrera, the judgment of co nviction is AFFIRMED for the reasons stated in our initial

opinion. For t he reasons set forth in this

opinion on remand, the judgment of sentence

is also AFFIRMED.