United States v. Pidcoke

* 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this opinion should not be published and is not precedent except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
October 24, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 04-50096
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD BURTON PIDCOKE, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-90-CR-110-1
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
We granted counsel’s motion for leave to withdraw pursuant
to Anders v. California, 386 U.S. 738 (1967), and dismissed
Pidcoke’s appeal. United States v. Pidcoke, No. 04-50096 (5th
Cir. Oct. 13. 2004) (unpublished). The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). See Pidcoke v. United States,
125 S. Ct. 1610 (2005). We requested and received supplemental
letter briefs addressing the impact of Booker. Pidcoke, who has

-- 1 of 3 --

No. 04-50096
-2-
chosen to represent himself on remand from the Supreme Court, has
filed a motion for leave to file a reply brief out of time. His
motion is GRANTED.
Pidcoke argues that he made a relevant Booker-based
objection in the district court to the drug-amount enhancement to
his sentence and therefore the plain-error standard of United
States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517), does not apply to that issue
and his sentence should be vacated and the matter remanded for
resentencing. He asserts that he did not object to enhancements
for drug type, leadership role, or obstruction of justice and
that plain-error review does apply to those issues. He argues
that the district court plainly erred under Booker in applying
those enhancements because, in doing so, the district court
misapplied the Sentencing Guidelines.
Because Pidcoke did not preserve a Booker issue in the
district court, review is for plain error. See Mares, 402 F.3d
at 513. Here, the district court erred by imposing a sentence
pursuant to a mandatory application of the sentencing guidelines.
See Booker, 125 S. Ct. at 768; see also Mares, 402 F.3d at 520-21
& n.9. However, Pidcoke must establish that the error was
“sufficient to undermine confidence in the outcome [of the
case].” United States v. Valenzuela-Quevedo, 407 F.3d 728, 733
(5th Cir. 2005) (internal quotation marks and citations omitted),
petition for cert. filed, (Jul. 25, 2005) (No. 05-5556). Pidcoke

-- 2 of 3 --

No. 04-50096
-3-
cannot make such a showing because the record does not establish
that the sentencing court would have imposed a different sentence
had it been proceeding under an advisory guideline scheme. The
district court sentenced Pidcoke to approximately the middle of
the guideline range, 210 months in prison, and it did so without
comment. Thus, Pidcoke cannot establish plain error, and his
Booker argument fails.
Pidcoke’s arguments regarding the misapplication of the
guidelines are beyond the scope of this remand and are not
cognizable in this remand. See Gradsky v. United States, 376
F.2d 993, 996 (5th Cir. 1967). Finally, Pidcoke’s argument that
the Mares plain-error standard of review should not be applied
because he was sentenced pre-Booker is meritless. Mares, too,
was sentenced pre-Booker. The district court’s judgment is
AFFIRMED.

-- 3 of 3 --