USA v. Kreuter, No. 03-20560 (5th Cir. 2006)
Annotate this Case
Download PDF
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 6, 2006 Charles R. Fulbruge III Clerk No. 03-20560 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MANFRED KREUTER, Defendant-Appellant. - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas (No. H-01-CR-618-ALL) - - - - - - - - - Before JOLLY and WIENER Circuit Judges.* PER CURIAM:** This matter is before us on remand from the United States Supreme Court for reconsideration in light of its recent opinion in United States v. Booker.1 At our request, the parties have submitted supplemental letter briefs addressing the impact of Booker. For the following reasons, we find that Booker does not affect Defendant-Appellant Manfred Kreuter s sentence. * Judge Pickering was a member of the original panel that heard this case, but he has since retired. This matter is being handled by a quorum. 28 U.S.C. § 46(d). ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 543 U.S. , 125 S. Ct. 738 (2005). I. Kreuter was BACKGROUND convicted of seven counts of wire fraud in violation of 18 U.S.C. § 1343 and money laundering in violation of 18 U.S.C. § 1957(a). months confinement, supervised release. The district court sentenced Kreuter to 60 to be The followed court also by a three-year imposed an $800 term of special assessment and ordered Kreuter to pay $968,645.91 in restitution. Kreuter appealed his conviction and sentence, and we affirmed in an unpublished opinion.2 Kreuter then petitioned the United States Supreme Court for a writ of certiorari. As noted above, the Supreme Court vacated the judgment and remanded to this court for further consideration in light of Booker. II. A. DISCUSSION Standard of Review Kreuter raised his Booker claim for the first time in his petition for certiorari. Therefore, we will not review his Booker claim absent extraordinary circumstances. 3 The extraordinary circumstances standard is more demanding than the plain error review that we employ when a defendant has raised his Booker claim for the first time on appeal.4 Therefore, if a defendant cannot satisfy the plain error standard, he certainly cannot satisfy the 2 United States v. Kreuter, No. 03-20560, 96 Fed. Appx. 950 (5th Cir. May 4, 2004). 3 United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005). 4 Id. 2 extraordinary circumstances standard.5 As Kreuter s claim does not survive plain error review, we need not address the question of extraordinary circumstances. Under plain error review, we will not remand for resentencing unless there is (1) error, (2) that is plain, and (3) that affects substantial rights. 6 If the circumstances meet all three criteria, we may exercise our discretion to notice the error, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. 7 Since Booker, sentencing under mandatory Guidelines (1) constitutes error, and (2) that error is plain.8 Whether the error affects substantial rights is a more complex inquiry in which the defendant bears the burden of proof. He carries his burden if he can demonstrate a probability sufficient to undermine confidence in outcome. 9 the The defendant demonstrates such a probability when he identifies from the record an indication that the sentencing judge would have reached a significantly different result under an advisory Guidelines scheme.10 5 Id. 6 United States v. Cotton, 535 U.S. 625, 631 (2002). 7 Id. 8 United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005). 9 Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74 (2004)). 10 Id. at 522. 3 B. Merits In his supplemental letter brief, Kreuter concedes that [t]here is no dispute that [he] cannot under the present state of the record scale the third and fourth components of a plain error analysis let alone extraordinary circumstances under United States v. Mares, ... the law [of] this Circuit. Specifically, Kreuter is unable to point to any indication in the record that there is a probability that the sentencing judge would have sentenced him differently under an advisory Guidelines scheme. Instead, he urges us to abandon the standard of review we adopted in Mares and instead apply the plain error standard employed by, inter alia, the Fourth Circuit.11 Mares is the settled law of this circuit, however, and we may revisit it only en banc or following a Supreme Court decision that effectively overturns it. Accordingly, we affirm the sentence imposed below. III. CONCLUSION As there exist no extraordinary circumstances or other grounds for relief, Kreuter s sentence is AFFIRMED. 11 2005). See, e.g., United States v. Hughes, 401 F.3d 540 (4th Cir. 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
