United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-50703
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS NOE SALAZAR-MONTES, also known as
Carlos Noe Salazar, also known as Carlos Salazar,
Defendant-Appellant.
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Consolidated with
No. 04-50704
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS NOE SALAZAR, also known as Carlos Salazar,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-299-ALL-FM
USDC No. 3:99-CR-273-ALL-FM
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No. 04-50703
c/w No. 04-50704
-2-
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 the judgment of conviction and sentence of
Carlos Noe Salazar-Montes (Salazar) for illegal reentry by an
alien. United States v. Salazar-Montes, No. 04-50703 (5th Cir. Dec.
17, 2004) (unpublished). This court also affirmed the revocation
of Salazar’s supervised release and sentence therefore in the
consolidated case, No. 04-50704. The Supreme Court vacated the
judgments in both cases and remanded for further consideration in
light of United States v. Booker, 125 S. Ct. 738 (2005). See
Chacon-Avitia v. United States, 125 S. Ct. 1952 (2005). We
requested and received supplemental letter briefs addressing the
impact of Booker.
Salazar contends that he is entitled to resentencing because
the district court erred under Booker by sentencing him under a
mandatory application of the United States Sentencing Guidelines.
This court will not consider a Booker-related challenge raised for
the first time in a petition for certiorari, as in Salazar’s case,
absent extraordinary circumstances. See United States v. Taylor,
409 F. 3d 675, 676 (5th Cir. 2005). Extraordinary circumstances is
*
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this opinion should not be published and is not precedent except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. 04-50703
c/w No. 04-50704
-3-
a “much more demanding standard to meet than plain error.” Id. at
677.
Salazar contends that he can show plain error resulting from
the district court’s application of the Guidelines. See United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517). Application of the
Guidelines as mandatory in determining a defendant’s sentence is
plain or obvious error after Booker. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-34 (5th Cir. 2005), petition
for cert. filed (July 25, 2005) (No. 05-5556). However, a
defendant also must establish that the error affected his
substantial rights by reference to “the sentencing judge’s remarks
or otherwise.” Mares, 402 F.3d at 522.
Salazar concedes that the district court made no particular
remarks disagreeing with the requirements of the mandatory
guidelines. However, he argues that there is a reasonable
probability that the district court would have imposed a lower
sentence, based on the fact that the court made six months of his
revocation sentence concurrent with his 77-month reentry sentence.
Salazar argues that this indicates at least a reasonable
probability that the court would have shown leniency regarding his
other sentence as well.
This argument is the sort of speculation that Mares rejects,
since it is equally plausible that the district court has already
given Salazar all the leniency it deemed appropriate. Accordingly,
No. 04-50703
c/w No. 04-50704
-4-
Salazar has failed the third part of the plain-error test by not
showing a reasonable probability that the result would have been
different except for the error. See Mares, 402 F.3d at 521. Since
Salazar has not shown plain error, “it is obvious that the much
more demanding standard for extraordinary circumstances, warranting
review of an issue raised for the first time in a petition for
certiorari, cannot be satisfied.” Taylor, 409 F.3d at 677.
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 Salazar’s conviction and
sentence in his reentry case and the judgment in his revocation
case.
AFFIRMED.