United States v. Higginbotham

United States Court of Appeals
Fifth Circuit
F I L E D
June 20, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-50018
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID HIGGINBOTHAM,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m SA-02-CR-144-ALL
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
This court affirmed David Higginbotham’s
conviction. United States v. Higginbotham,
113 Fed. Appx. 641 (5th Cir. 2004) (per cur-
iam). He raised no sentencing issues in his
appeal to this court. The Supreme Court
vacated and remanded for further consider-
ation in light of United States v. Booker, 125
S. Ct. 738 (2005). Higginbotham v. United
States, 125 S. Ct. 1749 (2005). We requested
and received supplemental letter briefs ad-
dressing the impact of Booker.
I.
In his appeal to this court, Higginbotham
did not raise any sentencing issues. After
Booker was announced, he filed a petition for
writ of certiorari raising, for the first time in
any forum, Booker-related sentencing issues.
Specifically, Higginbotham argues in his sup-
plemental letter brief on remand that under the
guidelines that were considered mandatory at
the time of his sentencing, the government’s
choice to charge the quantity of 150 grams of
heroin, instead of some lesser amount, man-
dated a sentence that was unfairly high. He
relies on comments from the district judge
that, he claims, show that the judge thought
the resulting sentence to be excessive but
required by the guidelines. This, Higgin-
botham asserts, is plain error that requires
reversal.
Higginbotham acknowledges that the plain
error standard of review applies because did
not preserve a Sixth Amendment 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 correct 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)).
The problem with this approach, as Higgin-
botham recognizes in his supplemental letters,
is that the error was raised for the first time in
his petition for writ of certiorari. In United
States v. Taylor, No. 03-10167, 2005 U.S.
App. LEXIS 8701, at *3 (5th Cir. May 17,
2005), we held that “absent extraordinary
circumstances,” we will not “consider an
argument raised for the first time in a petition
for [writ of] certiorari.”
Higginbotham responds that Taylor “is
neither controlling nor persuasive,” because,
Higginbotham reasons, Taylor is wrongly
decided, for the reason that in Taylor “the
Supreme Court . . . ordered . . . reconsidera-
tion” in light of Booker. Thus, Higginbotham
urges, “[t]he court of appeals may have discre-
tion to decline, in light of intervening law, to
revisit cases on its own; it does not have
similar discretion when reconsideration is
ordered by the higher court.” (Higginboth-
am’s emphasis, footnotes omitted.)
In Taylor, this court has already addressed
Higginbotham’s contention. In particular, the
Taylor panel cited with approval United States
* Pursuant to 5TH CIR. R. 47.5, the court has de-
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.

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v. Ardley, 273 F.3d 991 (11th Cir. 2001) (en
banc), as “holding that even a remand by the
Supreme Court for reconsideration in light of
an intervening [Supreme] Court opinion does
not require the court to consider an argument
raised for the first time in a petition for [writ]
of certiorari.” Taylor, 2005 U.S. App. LEXIS
8701, at *3. Taylor is binding precedent in this
court; the fact that a party disagrees with that
authority makes it no less so.
II.
Resourcefully, Higginbotham proceeds to
argue, in the alternative, that even conceding
that Taylor is valid as Fifth Circuit precedent,
it is distinguishable. Higginbotham accurately
observes that the Taylor panel went on to
examine whether the defendant had satisfied
the “extraordinary circumstances” test for
raising Booker error for the first time in a
certiorari petition.
Assuming there is plain error under Booker,
the third prong of the plain-error test requires,
under Mares, that “the defendant rather than
the government bears the burden of persuasion
with respect to prejudice.” Mares, 402 F.3d at
521 (citing United States v. Olano, 507 U.S.
725, 734 (1993)). To show that his substantial
rights are affected, Higginbotham would have
to “point[] to . . . evidence in the record sug-
gesting that the district court would have im-
posed a lesser sentence under an advisory
guidelines system.” Taylor, 2005 U.S. App.
LEXIS 8701, at *4 (citations omitted). In oth-
er words, “the pertinent question is whether
[the defendant] demonstrated that the sentenc-
ing judgeSSsentencing under an advisory
scheme rather than a mandatory one SSwould
have reached a significantly different result.”
Mares, 402 F.3d at 521.
To meet this test, Higginbotham, appropri-
ately, refers to a statement made by the district
judge at sentencing. The court felt compelled,
under the then-mandatory guidelines, to im-
pose a sentence of 97 months’ imprisonment,
which was at the bottom end of the applicable
guideline range. The government urged a
higher sentence. To that the judge replied, “I
mean 97 months is quite a bit of time already.
Plus he has lost his job [as a prison guard]. It
is not likely he will be hired in that capacity
again.”
We reject the notion that the court was
indicating, by this, that it would have given a
lower sentence under an advisory regime. As
we have said, the court’s comment was in
response to the prosecutor’s request for a sen-
tence greater than 97 months; it does not
necessarily reflect a view that 97 months was
itself unfair.
Under Mares, Higginbotham has not shown
that the result under an advisory scheme would
have been “significantly different.” Mares,
402 F.3d at 521. “There is no indication in the
record from the sentencing judge’s remarks or
otherwise that gives us any clue as to whether
[the judge] would have reached a different
conclusion.” Id. at 522. As far as we can tell
from the remarks on which Higginbotham
relies, it is at least equally plausible that the
district judge thought the sentence of 97
months was “just right,” “not too little and not
too much.”
Accordingly, Higginbotham has not satis-
fied the third prong of the plain error stan-
dard. Even if he had done so, we would have
to consider whether he had met what the
Taylor panel calls “the much more demanding
standard for extraordinary circumstances,
warranting review of an issue raised for the
first time in a petition for [writ of] certiorari.”
Taylor, 2005 U.S. App. LEXIS 8701, at *4.
We do not need to reflect on whether

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Higginbotham has shown “extraordinary cir-
cumstances,” but if we were to do so, we like-
ly would conclude that his 97-month sentence
falls far short of that.
The judgment of conviction is AFFIRMED
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. All pending motions are DE-
NIED.

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