United States v. Davis

* 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this opinion should not be published and is not precedent except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
August 16, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50719
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONIA ANISSIA DAVIS, also known as Tonia Davis,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-66-3
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Tonia Anissia Davis.
United States v. Davis, No. 03-50719 (5th Cir. Jan. 6, 2004)
(unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). Davis v. United States, 125 S. Ct. 1046
(2005). This court requested and received supplemental letter
briefs addressing the impact of Booker.

-- 1 of 2 --

No. 03-50719
-2-
Davis contends that she is entitled to resentencing because
the district court used judicially-found facts to enhance her
offense level and sentenced her under a mandatory application of
the United States Sentencing Guidelines prohibited by Booker.
This court will not consider a Booker-related challenge raised
for the first time in a petition for certiorari absent
extraordinary circumstances. United States v. Taylor,
409 F.3d 675, 676 (5th Cir. 2005). Davis identifies “no evidence
in the record suggesting that the district court would have
imposed a lesser sentence under an advisory guidelines system.”
Id. (citing United States v. Hernandez-Gonzalez, 405 F.3d 260,
261 (5th Cir. 2005); United States v. Mares, 402 F.3d 511, 521-22
(5th Cir.), petition for cert. filed (March 31, 2005) (No. 04-
9517)). Because Davis has not demonstrated plain error, “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.” See
Taylor, 409 F.3d at 677.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
therefore reinstate our judgment affirming Davis’s conviction and
sentence.
AFFIRMED.

-- 2 of 2 --