1 Judge Pickering was a member of the original panel but

retired from the Court on December 8, 2004 and, therefore, did not

participate in this decision.

2 Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 2, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-50978

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LEYUMBA WEBB,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas, Austin

USDC No. A-02-CR-301-ALL

_________________________________________________________________

ON REMAND FROM THE

SUPREME COURT OF THE UNITED STATES

Before JOLLY and WIENER, Circuit Judges. 1

PER CURIAM: 2

This court affirmed Leyumba Webb’s conviction and sentence.

United States v. Webb

, 96 Fed. Appx. 259 (5th Cir. 2004). The

Supreme Court vacated and remanded for further consideration in the

light of United States v. Boo ker , 125 S.Ct. 738 (2005). W ebb v.

United States

, 125 S.Ct. 1006 (2005). At this court’s request,2

Webb file d a supplemental letter brief addressing the impact of

Booker

. The Government filed a motion to reinstate our prior

affirmance of Webb’s conviction and sentence or, alternatively, to

extend the time to file its supplemental letter brief.

In his supplemental brief, Webb argues that the district court

erred by sentencing him under mandatory sentencing guidelines and

by enhancing his sentence on the basis of facts not alleged in the

indictment and found by a jury. He asserts that he preserved a

Booker claim by arguing during his sentencing hearing that the

court should depart downward because “courts have taken the liberty

of adjusting the [sic] downward when they see what could be just an

unreaso nable application or some application of the sentencing

guidelines that aren’t rational.” We disagree that this objection

was adequate to preserve a Booker claim. A request for a downward

departure is not the equivalent of an objection to the application

of mandatory Sentencing Guidelines or an objec tion on Sixth

Amendment grounds. S ee United States v. Garcia-Rodriguez

, 415 F.3d

452 (5th Cir. 2005) (district court had denied defendant’s request

for downward departure, but court reviewed Booker claim for plain

error).

Webb concedes that he did not raise a Booker issue on direct

appeal, but instead did so in his “Supplemental Brief to Petition

for Writ of Certiorari.” This court has held that, in the absence

of extraordinary circumstances, the court will not consider Booker

related arguments raised for the first time in a petition for a3

writ of c ertiorari. U nited States v. Taylor

, 409 F.3d 675, 676

(5th Cir. 2005).

Because Webb did not raise his Booker -related arguments in the

district court, we would have reviewed them for plain error had he

raised them for the first time on direct appeal. U nited States v.

Mares

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

, cert. denied , 126 S.Ct. 43

(2005). Under the plain error standard, we may correct an error in

Webb’s sentence only if he demonstrates that “there is (1) error,

(2) that is plain, and (3) that affects substantial rights. If all

three conditions are met an appellate court may then exercise its

discretion to notice a forfeited er ror but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” I d

. (internal citations and quotation marks

omitted). The first two prongs are satisfied here, because Webb

was sentenced based on facts found by the judge but not by the jury

under man datory Sentencing Guidelines. S ee United States v.

Creech , 408 F.3d 264, 271-72 (5th Cir. 2005).

To satisfy the third prong of the plain error test, Webb must

show, “with a probability sufficient to undermine confidence in the

outcome, that if the judge had sentenced him under an advisory

sentencing regime rather than a mandatory one, he would have

received a lesser sentence.” U nited States v. Infante

, 404 F.3d

376, 394-95 (5th Cir. 2005). Webb argues that the following

circumstances indicate that there is a “possibility” of a lower

sentence under advisory Guidelines:4

(1) the district court observed at sentencing that, “based on

a rather peculiar quirk in the guidelines which provide that if

someone has two or more convictions of a certain kind and is

convicted of a drug offense, then the guidelines classify him or

her as a career offender and the guidelines jump way up”;

(2) the district court recognized the rather small quantity of

drugs at issue in this case -- just over three grams;

(3) the district court noted that Webb was only 19 years old

when he was convicted of deadly conduct (one of the prior offenses

supporting the career offender enhancement)

(4) the district court’s imposition of the lowest possible

sentence under the Guidelines indicates a willingness to impose an

even lower sentence u nder a non-mandatory interpretation of the

Guidelines;

(5) the statut ory directive to sentencing courts to avoid

unwarranted sentencing disparities, 18 U.S.C. § 3553(a)(6),

indicates the possibility that his sentence would be less if the

court remanded for resentencing because the 1-100 quantity ration

of cocaine-base to cocaine powder in the Guidelines leads to

unwarranted sentencing disparity; and

(6) the Sentencing Commission has recognized that the career

offender provision has a disparate impact on mino rity defendants

that is not justified by recidivism rates because it includes drug

trafficking crimes as criteria for its application.5

Webb has not demonstrated “that the result would have likely

been differen t had the judge been sentencing under the B ooker

advisory regime rather than the pre- Booker mandatory regim e .”

Mares , 402 F.3d at 522. S ee Creech

, 408 F.3d at 272 (sentenc ing

judge’s e xplanations of mandatory nature of the Guidelines and

summary of sentencing law is not indicative of judge’s desire to

sentence differently under advisory Guidelines); United States v.

Bringier

, 405 F.3d 310, 317-18 & n.4 (5th Cir.) (sentencing judge’s

acknowledgment that sentence was “harsh”, and fact that sentencing

judge imposed minimum sentence under guideline range is not an

“indication that the judge would have reached a different

conclusion under an advisory scheme”), cert. denied

, 126 S.Ct. 264

(2005); see also United States v. Hernandez-Gonzalez

, 405 F.3d 260,

262 (5th Cir.) (fact that defendant received minimum sentence under

Guidelines, and evidence that defendant suffered from alcohol abuse

problem that was responsible for much of his criminal history and

that he returned illegally to the United States to earn money for

his family in Honduras was insufficient to demonstrate that

sentencing judge would have imposed lower sentence under advisory

guidelines), cert. denied , 126 U.S. 202 (2005).

Webb cannot show that his substantial rights were affected by

the Booker errors, and thus he cannot satisfy the plain error

standard. It necessarily follows that he cannot satisfy “the much

more demanding standard for extraordinary circumstances, warranting6

review of an issue raised for the first time in a petition for

certiorari.” Taylor , 409 F.3d at 677.

For the foregoing reasons, we conclude that nothing in the

Supreme Cour t’s Booker decision requires us to change our prior

affirmance in this case. We therefore GRANT the Government’s

motion to reinsta te our judgment affirming Webb’s conviction and

sentence, and D ENY as unnecessary its alternative motion for an

extension of time to file its supplemental letter brief.

JUDGMENT REINSTATED.