United States v. Mena-Valerino

United States Court of Appeals
Fifth Circuit
F I L E D
July 22, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-10099
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCOS MENA-VALERINO; HARLES PORTES HERRERA,
Defendants-Appellants.
_______________________
Appeals from the United States District Court
for the Northern District of Texas
m 4:03-CR-92-2-Y
______________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
This court affirmed the convictions and sen-
tences of Marcos Mena-Valerino and Harles
* Pursuant to 5TH CIR. R. 47.5, the court has de-
(continued...)
*(...continued)
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

-- 1 of 3 --

2
Herrera. United States v. Mena-Valerino, 117
Fed. Appx. 335 (5th Cir. 2004) (per curiam).
In regard to Herrera, the Supreme Court
vacated and remanded for further consider-
ation in light of United States v. Booker, 125
S. Ct. 738 (2005). Herrera v. United States,
125 S. Ct. 1875 (2005). We requested and re-
ceived supplemental letter briefs from the gov-
ernment and both defendants addressing the
impact of Booker.
I.
Mena-Valerino did not file a petition for
writ of certiorari. Accordingly, the order of
the Supreme Court vacating and remanding in
the wake of Booker is in regard only to Her-
rera’s certiorari petition, Supreme Court No.
04-9113. See United States v. Tippett, 975
F.2d 713, 719 (10th Cir. 1992).
Mena-Valerino’s counsel now files a mo-
tion for recall of the mandate and to supple-
ment the record. In his supplemental letter
brief, Mena-Valerino’s attorney states that he
advised his client “to file a petition for rehear-
ing and a [certiorari petition, but] the client
“did not pursue any of these remedies.” Coun-
sel now asks us to reopen the case to consider
the impact of Booker and related cases.
We deny the motions. By its very terms,
Booker “appl[ies] . . . to all cases on direct re-
view.” Booker, 125 S. Ct. at 769. See also In
re Elwood, 408 F.3d 211 (5th Cir. 2005) (per
curiam) (holding that “Booker does not apply
retroactively on collateral review”). As the
government notes in its supplemental letter,
Fifth Circuit Rule 41.2 provides that “[o]nce
issued a mandate shall not be recalled except
to prevent injustice.” We are justified in re-
calling a mandate “when a subsequent decision
by the Supreme Court renders a previous
appellate decision demonstrably wrong.”
United States v. Tolliver, 116 F.3d 120, 123
(5th Cir. 1997).
In his motion to recall the mandate, Mena-
Valerino claims there is error under Booker
because the district court, rather than a jury,
made a finding regarding the quantity of drugs
attributable to him. He did in fact make an ob-
jection in the district court based on Blakely v.
Washington, 542 U.S. 296 (2004). He was
sentenced to 180 months, which was in the
middle of the guideline range that the district
court calculated, and Mena-Valerino has pro-
vided no reason to believe that, if given the
opportunity, the district court would calculate
a sentence any differently under an advisory
sentencing scheme. There is no just reason to
recall the mandate.
II.
In his supplemental letter brief, Herrera ac-
knowledges that he raised no Sixth Amend-
ment objection in the district court, so our re-
view is for plain error. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No.
04-9517). “An appellate court may not cor-
rect an error the defendant failed to raise in the
district court unless there is ‘(1) error, (2) that
is plain, and (3) that affects substantial
rights.’” Id. (quoting United States v. Cotton,
535 U.S. 625, 631 (2002)). Moreover, Her-
rera did not articulate a true Sixth Amendment
claim until he filed his certiorari petition.
We have recently held that “absent extra-
ordinary circumstances, [we will not] consider
an argument raised for the first time in a pe-
tition for [writ of] certiorari.” United States v.
Taylor, 409 F.3d 675, 676 (5th Cir. 2005) (per
curiam). There is nothing extraordinary about
Herrera’s sentence, which is 160 months chos-
en from a guideline range of 151-188 months.
There is no showing that the district court
would have sentenced differently under an ad-

-- 2 of 3 --

3
visory scheme. Even without the “extraordi-
nary circumstances” requirement, the plain er-
ror test from Mares is not met.
III.
In summary, as to Mena-Valerino, the
motion to recall the mandate and the motion to
supplement the record are DENIED. As to
Herrera, the judgment of conviction is AF-
FIRMED for the reasons stated in our initial
opinion. For the reasons set forth in this
opinion on remand, the judgment of sentence
is also AFFIRMED.

-- 3 of 3 --