United States v. Sweat

* 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this opinion should not be published and is not precedent except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 5, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20612
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE SWEAT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-368-5
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and sentence
of Terrance Sweat. United States v. Sweat, No. 03-20612 (5th
Cir. Jun. 21, 2004) (unpublished). The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). Sweat v. United States, 125
S. Ct. 993 (2005). We requested and received supplemental letter
briefs addressing the impact of Booker.

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No. 03-20612
-2-
Sweat contends that he is entitled to resentencing because
the district court sentenced him 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,
F.3d , No. 03-10167, 2005 WL 1155245 at *1 (5th Cir. May
17, 2005). Sweat 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)). This
court has rejected the argument that a Booker error is a
structural error or that such error is presumptively prejudicial.
Mares, 402 F.3d at 520-22; see also United States v. Malveaux,
___ F.3d ___, No. 03-41618, 2005 WL 1320362, *1 n.9 (5th Cir.
Apr. 11, 2005). Because Sweat 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, 2005 WL 1155245 at *1.
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 Sweat’s conviction and
sentence.
AFFIRMED.

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