United States v. McTizic

* 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this opinion should not be published and is not precedent except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
F I L E D
July 26, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-11169
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAULETTE McTIZIC,
also known as Paulette Metizic,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:03-CR-36-ALL-Y)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed Paulette McTizic’s conviction for bank
fraud, in violation of 18 U.S.C. § 1344, and her 77-month sentence.
United States v. McTizic, 03-11169, 2004 WL 2244209 (5th Cir. 30
Sept. 2004). The Supreme Court granted McTizic’s petition for writ
of certiorari and for leave to proceed in forma pauperis (IFP);
vacated our judgment; and remanded the case for further
consideration in the light of United States v. Booker, 543 U.S.

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___, 125 S. Ct. 738 (2005). McTizic v. United States, 125 S. Ct.
1682 (2005). We requested, and received, supplemental briefs
addressing the impact of Booker. Having reconsidered our decision
pursuant to the Supreme Court’s instructions, we reinstate our
judgment affirming the conviction and sentence.
For the first time in her petition for rehearing, McTizic
challenged the constitutionality of her sentence, based on the
then-recent holding in Blakely v. Washington, 542 U.S. ____, 124 S.
Ct. 2531 (2004). Absent extraordinary circumstances, we will not
consider a defendant’s Booker-related claims presented for the
first time in a petition for rehearing. United States v.
Hernandez-Gonzalez, 405 F.3d 260, 261 (5th Cir. 2005).
McTizic has presented no evidence of extraordinary
circumstances. Even if showing such circumstances was not
required, because she did not raise her Booker-claims in district
court, any review would be only for plain error. See United States
v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed, (U.S. 31 Mar. 2005) (No. 04-9517). Her claims would fail
the third prong of plain-error review because she does not show any
error affected her substantial rights; she makes no “showing that
the error ... affected the outcome of the district court
proceedings”. Id. at 521 (quotation omitted). In sum, because she
fails plain-error review, McTizic falls far short of showing the
requisite extraordinary circumstances.

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AFFIRMED

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