*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opinion should not be published and is not precedent except under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.

United States Court of Appeals

Fifth Circuit

FILED

December 1, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41068

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMMY LYNN JOHNSON; REISA LYNN PETTIETTE,

Defendants-Appellants.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas 

USDC No. 6:02-CR-83-1

--------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

This court affirmed the convictions and sentences of Tommy

Lynn Johnson and Reisa Lynn Pettiette. United States v. Johnson,

No. 03-41068 (5th Cir. Aug. 3, 2004) (unpublished). The Supreme

Court vacated and remanded for further consideration in light of

United States v. Booker, 125 S. Ct. 738 (2005). See Johnson v.

United States, 125 S. Ct. 1090 (2005); Pettiette v. United States,
No. 03-41068

-2-

125 S. Ct. 1093 (2005). We requested and received supplemental

letter briefs addressing the impact of Booker. 

Pettiette argues that we should vacate her convictions and

sentences and remand her case to the district court for a new trial

because the Supreme Court’s remand order, by vacating our

affirmance of her convictions and sentences, also vacated the

district court’s judgment against her. Following the grant of

certiorari, this case was remanded to this court “for further

consideration in light of United States v. Booker.” Pettiette, 125

S. Ct. at 1093. When a case is remanded to this court from the

Supreme Court in limited terms, we must confine our review to

matters within those limitations. “Except that which we are

mandated to review, our previous rulings are the law of the case

and will not now be reconsidered.” Gradsky v. United States, 376

F.2d 993, 996 (5th Cir. 1967). This issue is without merit.

Alternatively, Pettiette argues that she is entitled to

resentencing because the district court enhanced her sentence based

on judge-found facts in violation of the Sixth Amendment. She

acknowledges that she did not raise an objection based upon Booker

or Blakely v. Washington, 542 U.S. 296 (2004), prior to her earlier

petition for rehearing in this court. We do not consider Booker

claims raised for the first time in a petition for rehearing absent

extraordinary circumstances. United States v. Hernandez-Gonzalez,

405 F.3d 260, 261 (5th Cir. 2005), cert. denied, --- U.S. ----, 126

S. Ct. 202 (2005).
No. 03-41068

-3-

Pettiette “points to no remarks made by the sentencing judge

that raise a reasonable probability that the judge would have

imposed a different sentence under an advisory scheme.” Id. at

262; see also United States v. Mares, 402 F.3d 511, 521-22 (5th

Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 43 (2005).

Accordingly, she has not shown that her sentence is plainly

erroneous. See Hernandez-Gonzalez, 405 F.3d at 262. Because she

has not demonstrated plain error, the more demanding standard for

extraordinary circumstances cannot be met. See id.

Johnson argues that he is entitled to resentencing because the

district court enhanced his sentence based upon judge-found facts

in violation of the Sixth Amendment. He acknowledges that he did

not raise an objection based upon Booker or Blakely prior to his

earlier petition for rehearing. While the sentencing court

arguably committed plain error, Johnson has not shown “a

possibility of injustice so grave as to warrant disregard of usual

procedural rules.” United States v. Ogle, 415 F.3d 382, 384 (5th

Cir. 2005) (quotation omitted). Accordingly, he has not met the

standard for extraordinary circumstances. See id.

Johnson further argues that Booker allows for the imposition

of a lesser sentence than the 25-year consecutive statutory minimum

sentence he received for his conviction on the second count of

possession of a firearm during the commission of a drug trafficking

offense. He maintains that Booker allows for the imposition of a

lesser sentence because there is not a strong connection between
No. 03-41068

-4-

his real conduct and the severe sentence he received. Citing

United States v. Harris, 397 F.3d 404, 413-14 (6th Cir. 2005), he

further asserts that he should not be subject to the 25-year

minimum sentence under Booker because the jury did not find all of

the elements necessary for the imposition of that sentence.

The jury convicted Johnson of two counts of possession of a

firearm during the commission of a drug trafficking offense and the

district court sentenced Johnson to the statutory minimum sentences

on those counts. Nothing in Booker allows a district court to

impose a sentence below the statutory minimum. See Booker, 125 S.

Ct. at 746-69. The Sixth Circuit’s decision in Harris is not

applicable to this case because it addressed the impact of Booker

on sentences under 18 U.S.C. § 924(c)(1)(B)(i), while Johnson was

sentenced to the statutory minimum sentence of 25 years of

imprisonment under 18 U.S.C. § 924(c)(1)(C)(i). The only required

element of 18 U.S.C. § 924(c)(1)(C)(i) that the jury did not find

was the fact of Johnson’s prior conviction, and Booker does not

prohibit the enhancement of sentences on this basis. See Booker,

125 S. Ct. at 756; United States v. Guevara, 408 F.3d 252, 261 (5th

Cir. 2005).

Johnson’s and Pettiette’s convictions are AFFIRMED for the

reasons stated in our initial opinion. For the reasons set forth

in this opinion on remand, their sentences are also AFFIRMED.