United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-20151
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
AGUSTIN CARRILLO-BANUELOS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(USDC No. 3:03-CR-236-ALL)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On March 21, 2005, the Supreme Court granted Carrillo-
Banuelos’s petition for a writ of certiorari, vacated the prior
judgment of this court, and remanded this appeal to this court for
“consideration in light of United States v. Booker, 543 U.S.___ [,
125 S. Ct. 738] (2005).” In its remand order the Supreme Court did
not specify which of the two majority opinions set forth in Booker
*
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opinion should not be published and is not precedent except under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.
was the basis for its remand decision. The Supreme Court did make
clear in its Booker decision that both opinions would be applicable
to all cases pending on direct review or not yet final as of
January 12, 2005. See Booker, 125 S. Ct. at 769 (citing Griffith
v. Kentucky, 479 U.S. 314, 328 (1987)). Carrillo-Banuelos’s appeal
satisfies those conditions.
In his original appeal to this court, Carrillo-Banuelos
claimed three grounds of error: first, the erroneous imposition of
a prohibition regarding possession of a dangerous device in his
condition of supervised release; second, that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326 (b) (1) and (2)
are elements of the offense, not sentence enhancements, making
those provisions unconstitutional; and third, that his sentence
violated Blakely v. Washington, 542 U.S. 296 (2004), an argument he
conceded was foreclosed by our decision in United States v.
Pineiro, 377 F.3d 464, 473-75 (5th Cir. 2004). Because Carrillo-
Banuelos failed to make any Booker-related objection in the
district court, we review for plain error.
Applying our plain error analysis, we conclude: (1) there was
error because the district court operated under a mandatory scheme
and not an advisory scheme; and (2) such error is now plain under
Johnson v. United States, 520 U.S. 461, 468 (1997)(holding it is
enough that error be plain at the time of appellate review).
However, under the third prong of our plain error methodology,
i.e., whether the error affects substantial rights, it is Carrillo-
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Banuelos’s burden to show that, but for the error of acting on the
premise that the Guidelines are mandatory and not advisory, the
district court would have made a different decision. In United
States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), we said that
“the pertinent question is whether [the defendant] demonstrated
that the sentencing judgeSSsentencing under an advisory scheme
rather than a mandatory oneSSwould have reached a significantly
different result.” That is, the plain error standard places the
“burden of proof [on the defendant] and requires ‘the defendant to
show that the error actually did make a difference: if it is
equally plausible that the error worked in favor of the defense,
the defendant loses; if the effect of the error is uncertain so
that we do not know which, if either, side it helped the defendant
loses.’” Id. (quoting United States v. Rodriguez, 398 F.3d 1291,
1300 (11th Cir. 2005)).
As the district judge noted, the circumstances of
Carrillo-Banuelos’s previous imprisonment were indisputably
“bizarre.” Carrillo-Banuelos illegally entered the United States
in 1987. He was convicted of delivery of a controlled substance in
1994 and sentenced to ten years’ probation. Probation was revoked
upon his conviction for criminal mischief in 1996, and he was
imprisoned. In January, 1998, Carrillo-Banuelos was deported. In
October, 1998, he was arrested, in the United States, and charged
under state law with child endangerment and evading detention. He
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was also charged under federal law with illegal re-entry.
At Carrillo-Banuelos’s state criminal trial, the jury reported
to the judge that it was deadlocked, at which point the judge gave
them an Allen charge. Carrillo-Banuelos, in fear of an imminent,
unfavorable verdict, changed his plea to guilty. Immediately
thereafter, the jury returned a verdict of not guilty.
Carrillo-Banuelos’s attorney moved for a new trial. The state
court granted the motion soon after. Unfortunately—and
improbably—no one told the attorney or Carrillo-Banuelos that the
motion had been granted, and Carrillo-Banuelos sat in prison for
four-and-a-half years—until his federal criminal trial—before
anyone realized that he had been granted a new trial.
At the sentencing hearing for the instant case—the federal
illegal re-entry charge—the sentencing judge expressed dismay that
the judge's order had been overlooked: “I still do not get it. How
in the world did he end up still spending five years in prison?
How did that happen?” She concluded: “That is just the weirdest
set of facts I have ever heard. It's just bizarre that he would
end up being in jail and nobody bothered to let anybody know that
a new trial had been granted. That’s just bizarre.”
Due to this unusual circumstance, Judge Gilmore downwardly
departed from a Criminal History Category of VI to a Criminal
History Category of V. She wrote in the statement of reasons: “The
Court finds a departure to criminal history category V is
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warranted, as the defendant’s criminal history category
substantially over-represents the seriousness of the defendant’s
criminal history, pursuant to U.S.S.G. § 4A1.3(b).” Based on this
lower criminal history category, Carrillo-Banuelos's Guidelines
range was 70–87 months. Judge Gilmore then sentenced
Carrillo-Banuelos to 70 months in prison.
Mares suggests that non-verbal clues might aid the Court in
determining whether the appellant has established a “probability
‘sufficient to undermine confidence in the outcome’” that the
sentencing judge would have given a lower sentence if the
Guidelines were discretionary. United States v. Mares, 402 F.3d
511, 521 (5th Cir. 2005) (noting that “there is no indication in
the record from the sentencing judge's remarks or otherwise that
gives us any clue as to whether she would have reached a different
conclusion” (emphasis added)). In this case, however, it is clear
that the sentencing judge did not feel constrained to the range to
which a dutiful application of the mandatory Sentencing Guidelines
committed her. Rather, she appropriately remarked that the
circumstances were unusual, and downwardly departed accordingly.
We are not persuaded that this combination of factors—(1) a
downward departure, (2) a sentence at the bottom of the new range,
and (3) a comment from the sentencing judge that the state criminal
proceedings were “bizarre”—satisfies the third prong of the plain
error test. Carrillo-Banuelos has not shown that the sentence
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imposed by the district court violated his substantial rights.
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. AFFIRMED.
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