`FIFTH CIRCUIT
`
`No. 04-50014
`Conference Calendar
`
`United States Court of Appeals
`Fifth Circuit
`F I L E D
`August 17, 2005
`
`Charles R. Fulbruge III
`Clerk
`
`UNITED STATES OF AMERICA,
`
`v.
`DANNY RAY BISHOP,
`
`Plaintiff-Appellee,
`
`Defendant-Appellant.
`--------------------
`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. W-03-CR-105-1
`--------------------
`ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
`Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
`PER CURIAM:*
`This court affirmed Danny Ray Bishop’s jury-trial conviction
`for manufacturing methamphetamine and possession of
`pseudoephedrine with intent to manufacture methamphetamine, and
`his 168-month sentence. United States v. Bishop, No. 04-50014,
`2004 WL 2913893 (5th Cir. Dec. 16, 2004). The Supreme Court
`granted Bishop’s petition for a writ of certiorari, vacated our
`previous judgment, and remanded the case for further
`consideration in the light of United States v. Booker, 543 U.S.
`
`* 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`this opinion should not be published and is not precedent except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.
`
`
`
`No. 04-50014
`-2-
`125 S. Ct. 738 (2005). Bishop v. United States, 125 S. Ct. 1937
`(2005). We received supplemental briefs addressing Booker’s
`impact, and Bishop’s motion to file a supplemental reply brief is
`GRANTED. Having reconsidered our decision pursuant to the
`Supreme Court’s instructions, we reinstate our judgment affirming
`the conviction and sentence.
`Our review of the full record, in light of Bishop’s
`supplemental reply brief, convinces us that Bishop challenged the
`constitutionality of his sentence on the principles of Booker for
`the first time in his petition for writ of certiorari. Absent
`extraordinary circumstances, we will not consider a defendant’s
`Booker-related claims presented for the first time in a petition
`for writ of certiorari. United States v. Taylor, 409 F.3d 675,
`675 (2005).
`Bishop has presented no evidence of extraordinary
`circumstances. Even if a showing of such circumstances were not
`required, because Bishop did not raise his Booker claim in
`district court, any review would be only 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). Bishop’s
`claim fails the third prong of plain-error review because he does
`not show any error affected his substantial rights. Id. at 521.
`That is, he makes no “showing that the error . . . affected the
`
`2
`
`
`
`No. 04-50014
`-3-
`outcome of the district court proceedings.” Id. (quotation marks
`omitted).
`Bishop contends that the district court committed
`“structural error” when it sentenced him under a mandatory
`guidelines system and that prejudice to his substantial rights
`should be presumed. We have rejected this contention as
`inconsistent with Mares. See United States v. Malveaux, 411 F.3d
`558, 561 n.9 (5th Cir. 2005), petition for cert. filed (July 11,
`2005) (No. 04-5297). Because Bishop fails plain-error review, he
`also falls short of showing the “possibility of injustice so
`grave as to warrant disregard of usual procedural rules,” which
`is required to establish extraordinary circumstances. See United
`States v. Ogle, __F.3d__, No. 03-60833, 2005 WL 1503538 (5th Cir.
`June 27, 2005) (citation omitted).
`We conclude, therefore, that nothing in the Supreme Court’s
`Booker decision requires us to change our prior affirmance in
`this case. We therefore affirm the conviction and sentence as
`set by the trial court.
`Bishop’s motion to file a supplemental reply brief is
`granted.
`AFFIRMED; MOTION TO FILE SUPPLEMENTAL REPLY BRIEF GRANTED
`
`3
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
