United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 5, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30451
Summary Calendar
United States of America
Plaintiff-Appellee,
versus
Luis Alonso Rodriguez-Gutierrez, also known as Saul
Martinez-Guevara, also know as Luis Rodriguez, also known
as Saul Alberto Martinez-Guevara, also known as Alonzo
Martinez-Lopez, also known as Luis Alonso
Gutierrez-Rodriguez, also known as Luis Martinez, also known
as Alonso Martines
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Defendant-Appellant Luis Alonso Rodriguez-Gutierrez pled
guilty to illegal re-entry following deportation subsequent to an
aggravated felony, in violation of 8 U.S.C. § 1326(a) & (b). We
affirmed.1 After the Supreme Court decided United States v.
1
United States v. Rodriguez-Gutierrez, 119 Fed. Appx. 681 (5th Cir.
2005) (per curiam).
Booker,2 it vacated Rodriguez’s sentence and remanded to this Court
for further consideration in light of that decision.3 We requested
and received supplemental letter briefs addressing the impact of
Booker, and we again affirm Gutierrez’s sentence.
Gutierrez did not raise the Booker error until his petition
for writ of certiorari to the Supreme Court. Absent extraordinary
circumstances, we will not consider a defendant’s Booker-related
claims presented for the first time in a petition for rehearing.4
Gutierrez has presented no evidence of extraordinary circumstances.
Even if a showing of extraordinary circumstances was not
required, our review would be for plain error because Gutierrez did
not raise his Booker claims in district court.5 Under plain error
review, this Court has “a limited power to correct errors that were
forfeited because [they were] not timely raised in the district
court.”6 “An appellate court may not correct an error the
defendant failed to raise in the district court unless there is (1)
2
125 S. Ct. 738 (2005).
3
Rodriguez-Gutierrez v. United States, 125 S. Ct. 2308 (2005).
4
United States v. Hernandez-Gonzalez, 405 F.3d 260, 261 (5th Cir. 2005).
5
See United States v. Mares, 402 F.3d 511, 5120 (5th Cir. 2005), pet.
for cert. filed, (U.S. Mar. 31, 2005) (No. 04-9517).
6
United States v. Olano, 507 U.S. 725, 731 (1993).
2
error, (2) that is plain, and (3) that affects substantial
rights.”7
Here, although Rodriguez can meet the first and second prongs
of the plain error standard,8 he cannot show that the error
affected his substantial rights. To make such a showing, Rodriguez
“bears the burden of demonstrating a probability sufficient to
undermine confidence in the outcome.”9 Specifically, the question
is whether Gutierrez can demonstrate “that the sentencing judge
would have reached a different result had it sentenced [him] under
an advisory scheme rather than a mandatory one.”10 Guiding this
Court’s review, the Supreme Court mandates that establishing such
error “should not be too easy.”11
In light of Booker, we have reviewed numerous sentences under
this plain error standard. Often, and likely quite rightly, our
opinions do not provide any extended analysis, as most defendants
have no evidence suggesting that any Booker error affected their
substantial rights. Our opinions giving the issue any extended
treatment have focused on two issues: first, whether the judge made
7
Mares, 402 F.3d at 520 (citing United States v. Cotton, 535 U.S. 625,
631 (2002)).
8
See Mares, 402 F.3d at 520-21 (finding that a sentence imposed under
the mandatory Sentencing Guidelines is plain error).
9
United States v. Bringier, 405 F.3d 310, 317 (5th Cir. 2005), pet. for
cert. filed (July 26, 2005) (No. 05-5535).
10
Id.
11
United States v. Dominguez-Benitez, 124 S. Ct. 2333, 2340 (2004).
3
any statements during sentencing indicating that he would have
imposed a lesser sentence had he not considered the Guidelines
mandatory; second, the relationship between the actual sentence
imposed and the range of sentences provided by the Guidelines.
Each will be addressed in turn.
Our cases have placed a substantial burden upon defendants to
show specific statements of the sentencing judge that suggest a
lower sentence would be imposed under an advisory system. In
United States v. Bringier, the Court found that the “substantial
rights” prong of plain error review was not satisfied because the
defendant could not point to anything in the record that indicated
that the sentencing judge would have reached a different conclusion
under an advisory scheme.12 The Court, “out of an exercise of
caution, but not out of any obligation to do so,” reviewed the
sentencing hearing transcript and concluded that a sentencing
judge’s mere “acknowledgment” that a sentence was “harsh” was not
sufficient to establish that the defendant’s substantial rights
were affected.13
In contrast, in United States v. Pennell, a panel of this
Court found that the defendant’s substantial rights had been
affected and remanded for resentencing.14 There, the sentencing
12
Bringier, 405 F.3d at 317.
13
Id. at 317 & n.4.
14
United States v. Pennell, 409 F.3d 240, 245-46 (5th Cir. 2005).
4
judge indicated that “from many standpoints of fairness and
justice, it might be better to sentence people just based on actual
loss, but I don’t think that’s the way the Guidelines are written
. . . . So I feel constrained to” sentence the defendant in
accordance with the Guidelines.15 On this basis, the Court
concluded that the district court would have selected a sentence
other than the one mandated by the Guidelines.16
Here, nothing in the statements by the district court judge
suggest that he would have imposed a lower sentence on Gutierrez
had he not considered the Guidelines mandatory. Specifically, the
judge stated:
Well, he doesn’t have a good record and, as you say, he
is a supervised release violator. He has two cocaine
convictions, a hit-and-run conviction, and he has got ten
or so other minor violations. I sympathize with his
family situation. As everybody knows, I have lost my own
wife. It’s not easy to do. There are many immigration
laws that I don’t agree with, frankly, but they are the
law and they have to be complied with and someone with a
bad record does not deserve sympathy especially someone
with a drug record.
The only statement suggesting that the sentence was inappropriate
is the judge’s disagreement with “immigration laws.” This could
mean, as Rodriguez argues, that the judge felt the sentence
mandated by the Guidelines inappropriate; it could also mean, as
the government contends, that the judge considered the particular
immigration law violated by Rodriguez inappropriate. Without more,
15
Id.
16
Id. at 246.
5
we cannot say that the judge’s Booker error affected Rodriguez’s
substantial rights.
Our cases also have given varying weight to the relationship
between the actual sentence imposed and the range of sentences
provided by the Guidelines. In Bringier, for instance, this Court
refused to give any weight to the fact that the imposed sentence
was at the bottom end of the Guidelines.17 The Court stated that
the mere fact that the sentencing judge sentenced the defendant to
the minimum sentence under the Guidelines “is no indication that
the judge would have reached a different conclusion under an
advisory scheme.”18 In Pennell, by contrast, this Court referenced
the fact that the judge imposed the minimum possible sentence and
concluded that the defendant’s substantial rights were affected by
the judge’s Booker error.19 In United States v. Infante, this Court
found that the defendant’s substantial rights were not affected
because, in part, the imposed sentence was in the middle of the
provided ranges.20 Finally, in United States v. Garcia, the
sentencing judge, after commenting that he would prefer to impose
17
Bringier, 405 F.3d at 317 n.4 (“In addition, the fact that the
sentencing judge imposed the minimum sentence under the Guideline range (360
months) alone is no indication that the judge would have reached a different
conclusion under an advisory scheme.”) (citing Mares, 402 F.3d at 521-22).
18
Id.
19
Pennell, 409 F.3d at 246 (recognizing that “[t]he district court
sentenced Pennell at the bottom of the Guideline range”).
20
404 F.3d 376, 394-95 (5th Cir. 2005).
6
a lesser sentence, set the defendant’s sentence “at the very bottom
of the applicable Guidelines range.”21
In reviewing sentences imposed in violation of Booker for
plain error, we see three potential relationships: (1) the sentence
imposed was the absolute maximum sentence provided under the
Guidelines; (2) the sentence imposed was the absolute minimum
sentence provided under the Guidelines; and (3) the sentence
imposed was somewhere in the middle of the range provided by the
Guidelines. Although the third class of cases does not tell us
much about whether the sentencing judge would have imposed a lesser
sentence,22 there is a strong argument that the first two situations
are probative on whether the defendant’s substantial rights were
affected by the Booker error. Bringier, however, has rejected this
contention.23
Sentences that fall at the absolute maximum of the Guidelines
provide the strongest support for the argument that the judge would
not have imposed a lesser sentence. Although the mandatory
Guidelines were designed to reduce sentence disparity,24 they still
21
United States v. Garcia, No. 04-40963, 2005 WL 1606898, at *1 (5th
Cir. July 11, 2005).
22
See, e.g., Infante, 404 F.3d at 394-95.
23
See supra note 17.
24
See Mistretta v. United States, 488 U.S. 361, 363-67 (1989)
(discussing the justifications for the Guideline system).
7
left some discretion to the sentencing judge within a particular
range.25
Likewise, sentences falling at the absolute minimum of the
Guidelines provide the strongest support for the argument that the
judge would have imposed a lesser sentence. Although we do not
hold that this fact alone will establish that the Booker error
affected the defendant’s substantial rights, we do consider it be
highly probative, when taken together with relevant statements by
the sentencing judge indicating disagreement with the sentence
imposed, that the Booker error did affect the defendant’s
substantial rights.
To clarify, we do not suggest that a defendant sentenced at
the absolute maximum of the range provided by the Guidelines will
never be able to show that his substantial rights were affected.
We agree with the Seventh Circuit that a judge could consider one
defendant a more serious offender than another defendant and thus
sentence the former to a higher sentence within the range, even
while considering the entire range to be too high.26 Nor do we
suggest that every sentence imposed at the absolute minimum of the
range provided by the Guidelines will necessarily compel reversal
by this Court. We only make explicit what our prior cases had done
25
Prior to Booker, 18 U.S.C. § 3553(a)(4) required courts to consider
“the kinds of sentence and the sentencing range established for (A) the
applicable category of offense committed by the applicable category of
defendant as set forth in the guidelines.”
26
See United States v. Paladino, 401 F.3d 471, 482 (7th Cir. 2005).
8
implicitly––that is, examining the relationship between the
sentence imposed and the range provided to the sentence judge under
the perceived mandatory Guidelines.
Here, not only can Gutierrez not point to any evidence that
the judge would have imposed a lesser sentence under an advisory
system, Gutierrez’s sentence was imposed at the maximum level
provided by the Guidelines. Thus, we conclude that Gutierrez
cannot show that the judge’s Booker error affected his substantial
rights.
Accordingly, Gutierrez’s sentence is AFFIRMED.
9