1

United States Court of Appeals

Fifth Circuit

FILED

May 17, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-10167 

 

UNITED STATES OF AMERICA

Plaintiff - Appellee 

v.

WILLIAM CLARK TAYLOR 

Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and REAVLEY and GARZA, Circuit Judges.

PER CURIAM: 

The Supreme Court has granted Defendant-Appellant Taylor’s

petition for writ of certiorari, vacated our previous judgment in

this case, and remanded the case to this court for further

consideration in light of United States v. Booker, 125 S. Ct. 738

(2005). Previously, we had affirmed Taylor’s conviction and

sentence. See United States v. Taylor, No. 03-10167, 2004 WL

1254204, at *1 (5th Cir. June 8, 2004) (per curiam)

(unpublished). Following our judgment, Taylor filed a petition

for certiorari, in which he challenged for the first time the
1 In his petition for certiorari, Taylor argues that it

was constitutional error for the district court to enhance his

sentence based on the finding by the district judge, rather than

the jury, that he had obstructed justice. After the Supreme

Court remanded this case to us, Taylor filed a supplemental

letter brief in which he also argues that: (1) the district court

erred by sentencing him pursuant to the mandatory sentencing

guideline regime in place before the Supreme Court’s decision in

Booker; and (2) the remedial portion of Booker retroactively

violates his Due Process rights and the Ex Post Facto Clause of

the Constitution. In his initial appeal to this court, Taylor

did not raise any of these Booker-related arguments, but instead

argued that: (1) the evidence against him was insufficient to

support his conviction; and (2) the district court erred by

finding that he had committed perjury. Taylor, 2004 WL 1254204,

at *1-3. We rejected both of these arguments. Id.

2

constitutionality of the Sentencing Guidelines as applied to

him.1 Having reconsidered our decision pursuant to the Supreme

Court’s instructions, we reinstate our judgment affirming the

conviction and sentence.

We recently held in United States v. Hernandez-Gonzalez, No.

04-40923, 2005 WL 724636 (5th Cir. Mar. 30, 2005), that, absent

extraordinary circumstances, we will not consider Booker issues

raised for the first time in a petition for rehearing. See also

United States v. Sutherland, 428 F.2d 1152, 1158 (5th Cir. 1970)

(per curiam); United States v. Ardley, 273 F.3d 991 (11th Cir.

2001) (en banc) (holding that even a remand by the Supreme Court

for reconsideration in light of an intervening Court opinion does

not require the court to consider an argument raised for the

first time in a petition for certiorari). It would be illogical

for this court, absent exceptional circumstances, to consider an

argument raised for the first time in a petition for certiorari
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after having previously held that we will not consider such an

argument in a petition for rehearing. Accordingly, absent

extraordinary circumstances, we will not consider Taylor’s

Booker-related arguments. 

Because Taylor did not raise his Booker-related arguments in

the district court, had he raised these challenges in this court

before the decision issued on his direct appeal, we would have

reviewed them for plain error. United States v. Mares, 402 F.3d

511, 520 (5th Cir. 2005). There is no plain error here, however,

because Taylor points to no evidence in the record suggesting

that the district court would have imposed a lesser sentence

under an advisory guidelines system. See Hernandez-Gonzalez,

2005 WL 724636, at *1; Mares, 402 F.3d at 521-22. Because plain

error has not been shown, it is obvious that the much more

demanding standard for extraordinary circumstances, warranting

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

certiorari, cannot be satisfied.

 Accordingly, we conclude that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in

this case. We therefore reinstate our judgment affirming the

defendant’s conviction and sentence.