United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 4, 2005
Charles R. Fulbruge III
No. 04-40518 Clerk
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR TREJO-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-41-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
We affirmed the sentence of Cesar Trejo-Hernandez. United
States v. Trejo-Hernandez, No. 04-40518 (Dec. 17, 2004) (per
curiam). The Supreme Court vacated and remanded for further
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). We requested and received supplemental letter briefs
addressing the impact of Booker.
Trejo argued in his initial brief and in his petition for a
writ of certiorari that the provisions of 8 U.S.C. § 1326(b) are
*
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this opinion should not be published and is not precedent except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. 04-40518
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unconstitutional. Trejo conceded that his argument was
foreclosed by existing precedent, but he sought to preserve the
issue for further review. Nothing in the Supreme Court’s Booker
decision affected the validity of Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See Booker, 125 S. Ct. at 756 (the
Booker holding applies to any fact (other than a prior
conviction)). The decision in Apprendi v. New Jersey, 530 U.S.
466 (2000), left Almendarez-Torres intact. See Apprendi, 530
U.S. at 489-90 (“fact of a prior conviction” need not be
submitted to a jury).
Trejo argued in his initial brief and in his petition for a
writ of certiorari that his sentence should be vacated because he
was sentenced under the erroneous assumption that the Guidelines
were mandatory. Our review of this issue is for plain error.
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
Although Trejo has satisfied the first two criteria for
establishing plain error, he is required to demonstrate that “the
sentencing judge--sentencing under an advisory scheme rather than
a mandatory one--would have reached a significantly different
result.” United States v. Mares, 402 F.3d 511, 521 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517);
Valenzuela-Quevedo, 407 F.3d at 733. Trejo has not met his
burden because there is “no evidence in the record suggesting
that the district court would have imposed a lesser sentence
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under an advisory guidelines system.” United States v. Taylor,
409 F.3d 675, 677 (5th Cir. 2005).
Trejo challenged in his initial brief and he again
challenges the eight-level increase he received based on the
finding that his prior Texas conviction for possession of cocaine
is an aggravated felony. He asserts that other circuits have
held that simple possession should not be considered an
aggravated felony in the immigration context. Id.
Following the grant of certiorari, this case was remanded to
this court “for further consideration in light of United States
v. Booker.” When a case is remanded to this court from the
Supreme Court in limited terms, by clear implication, this court
must confine its review to matters within those limitations. See
Gradsky v. United States, 376 F.2d 993, 996 (5th Cir. 1967)
(“Except that which we are mandated to review, our previous
rulings are the law of the case and will not now be
reconsidered.”).
Trejo argues on remand for the first time, citing Booker,
125 S. Ct. at 756, that his sentence was increased based on a
finding made by the district court that he committed the instant
offense within two years of his release from custody on another
conviction. Trejo contends that his “guideline range was
artificially enhanced by a counterintuitive understanding of the
meaning of the term drug-trafficking, which includes felony
possession of a controlled substance.” Trejo also challenges for
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the first time on remand our decision in United States v.
Scroggins, ___ F.3d ___, 2005 WL 1324808 (5th Cir. June 6, 2005).
We do not consider Trejo’s Scroggins challenge. Cf.
Gradsky, 376 F.2d at 996. Trejo cannot satisfy the less
demanding showing of plain error, much less demonstrate
extraordinary circumstances on his Sixth Amendment issues that
are raised for the first time. See Taylor, 409 F.3d at 677
(“Because plain error has not been shown, it is obvious that the
much more demanding standard for extraordinary circumstances,
. . . cannot be satisfied.”). Trejo concedes that he cannot
point to anything in the record to indicate that the district
court, in a post-Booker sentencing proceeding, would have imposed
a different sentence. See Mares, 402 F.3d at 521.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
therefore reinstate our judgment affirming Trejo’s conviction.
For the reasons set forth in this opinion on remand, his sentence
is also AFFIRMED.
AFFIRMED.