United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 23, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-41602
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ADELFO DUARTE-JUAREZ,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:
Adelfo Duarte-Juarez pleaded guilty to knowingly and
unlawfully being found present in the United States after
deportation, in violation of 8 U.S.C. § 1326. The presentence
report calculated his base offense level as eight, pursuant to
U.S.S.G. § 2L1.2(a). Sixteen levels were added, pursuant to
U.S.S.G. 2L1.2(b)(1)(A), because of a prior conviction for
harboring an illegal alien. Duarte-Juarez objected to the sixteen-
level enhancement on the ground that harboring an alien within the
United States is not equivalent to alien-smuggling for profit, as
defined under U.S.S.G. § 2L1.2(b)(1)(A) (Nov. 1, 2002). The
district court overruled Duarte-Juarez’s objection and sentenced
him to 41 months imprisonment, at the bottom of the Guidelines
range.
On direct appeal, Duarte-Juarez challenged the
constitutionality of the statute of conviction, and argued that his
prior conviction for harboring illegal aliens was not an alien-
smuggling offense under § 2L1.2(b)(1)(A). This court affirmed the
conviction and sentence on direct appeal, holding that United
States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002), foreclosed
Duarte-Juarez’s argument that his prior conviction for harboring
illegal aliens was not an alien-smuggling offense. United States
v. Duarte-Juarez, 110 Fed. Appx. 461 (5th Cir. 2004). The Supreme
Court vacated and remanded for further consideration in the light
of United States v. Booker, 125 S.Ct. 738 (2005). Gaona-Tovar v.
United States, 125 S.Ct. 1612 (2005). We requested and received
supplemental letter briefs addressing the impact of Booker.
In his supplemental brief, Duarte-Juarez argues that the
district court’s application of mandatory sentencing guidelines was
reversible error.* Duarte-Juarez acknowledges that he did not
*
To preserve the issue for further review in the Supreme
Court, Duarte-Juarez contends that the standard of review should be
de novo because he objected to the district court’s application of
the sentencing enhancement for having been previously convicted of
an aggravated felony on the ground that his previous conviction for
alien harboring did not amount to alien smuggling for profit. He
recognizes that this contention is foreclosed by this court’s
precedent. See United States v. Pennell, 409 F.3d 240 (5th Cir.
2005); and United States v. Akpan, 407 F.3d 360 (5th Cir. 2005).
He also preserves for further review in the Supreme Court the
2
raise a Booker issue in the district court or on direct appeal, but
instead did so for the first time in his petition for writ of
certiorari. This court has held that, in the absence of
extraordinary circumstances, the court will not consider Booker-
related arguments raised for the first time in a petition for a
writ of certiorari. United States v. Taylor, 409 F.3d 675, 676
(5th Cir. 2005).
Because Duarte-Juarez did not raise his Booker-related
arguments in the district court, we would have reviewed them for
plain error had he raised them for the first time on direct appeal.
United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S.Ct. 43 (2005). Under the plain-error standard, we may
correct an error in Duarte-Juarez’s sentence only if he
demonstrates that “there is (1) error (2) that is plain, and (3)
that affects substantial rights. If all three conditions are met
an appellate court may then exercise its discretion to notice a
forfeited error but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id. (internal citations and quotation marks omitted). The first
two prongs are satisfied here because Duarte-Juarez was sentenced
under guidelines believed by the district court to be mandatory.
following additional arguments that are also foreclosed by our
precedent: (1) that de novo review should apply because it would
have been futile to have objected to the district court’s
application of mandatory sentencing guidelines under the case law
in effect at the time of his sentencing; and (2) that Booker error
is structural, or presumptively prejudicial.
3
To satisfy the third prong of the plain-error test, Duarte-
Juarez must show, “with a probability sufficient to undermine
confidence in the outcome, that if the judge had sentenced him
under an advisory sentencing regime rather than a mandatory one, he
would have received a lesser sentence.” United States v. Infante,
404 F.3d 376, 394-95 (5th Cir. 2005). Duarte-Juarez argues that
the district court’s imposition of a sentence at the bottom of the
guidelines range, and its clear displeasure with this court’s
precedent holding that harboring aliens within the United States
warrants the same sixteen-level increase to the offense level as
alien-smuggling for profit, indicate that there is a reasonable
probability that the district court would have imposed a lesser
sentence if not constrained by mandatory sentencing guidelines.
The district court’s imposition of a sentence at the bottom of
the guidelines range, alone, does not indicate that there is a
reasonable probability that the court would have imposed a lesser
sentence under advisory sentencing guidelines. See United States
v. Bringier, 405 F.3d 310, 317-18 & n.4 (5th Cir.) (sentencing
judge’s acknowledgment that sentence was “harsh” and fact that
sentencing judge imposed minimum sentence under guideline range are
not an “indication that the judge would have reached a different
conclusion under an advisory scheme”), cert. denied, 126 S.Ct. 264
(2005). However, a minimum sentence is “highly probative, when
taken together with relevant statements by the sentencing judge
indicating disagreement with the sentence imposed, that the Booker
4
error did affect the defendant’s substantial rights.” United
States v. Rodriguez-Gutierrez, 428 F.3d 201, 204 (5th Cir. 2005).
Duarte-Juarez points to the following colloquy at the
sentencing hearing in support of his contention that the district
court expressed “clear displeasure” with this court’s precedent:
[THE COURT]: I have also done some
research on this case, and I am afraid the
news, once again, is not good for the
defendant. Although the Fifth Circuit has not
directly addressed this issue, I think the
clearer import of the decision in U.S. vs.
Solis-Campozano ... and an earlier decision in
U.S. vs. Mon[j]aras-Castaneda ... are that
harboring does qualify for the 16-level bump.
I personally found persuasive Judge
Pol[itz]’s dissent in the Mon[j]aras-Castaneda
[sic] case, but it didn’t persuade anybody
else, though.
If you have any authority you want to
argue with me about, I’m happy to listen to
it.
[DEFENSE COUNSEL]: Only the fact in
Solis vs. Campozano, Your Honor, we would just
like to point out to the Court that that case
dealt with transporting.
[THE COURT]: No. No, I’m saying the
Fifth Circuit has not dealt with this issue.
[DEFENSE COUNSEL]: Right exactly.
[THE COURT]: And if you want to take it
up on appeal, I think you are well within your
rights. But right now the import of the
decisions that are on the books, which suggest
that I would be in error if I yielded to your
objections. So I do overrule that. I
certainly understand why it was made.
5
In the case referred to by the district court, United States
v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. 1999), this court
upheld the imposition of a 16-level enhancement under U.S.S.G. §
2L1.2(b)(1)(A), holding that a conviction for illegal
transportation of aliens was an “offense relating to alien
smuggling” and therefore an aggravated felony for purposes of that
Guideline section. Id. at 331. Judge Politz dissented, asserting
that “Congress meant to require a border-crossing element when it
authorized an aggravated felony en[hance]ment for crimes ‘relating
to alien smuggling’”. Id. at 333 (Politz, J., dissenting).
Arguably, these remarks by the district court, expressing
disagreement with this court’s precedent, indicate that there is a
reasonable probability that the district court would have imposed
a lesser sentence if it had known that the Guidelines were merely
advisory, and thus are adequate to demonstrate that Duarte-Juarez’s
substantial rights were affected under the third prong of the plain
error test. Cf. United States v. Longbine, 150 Fed. Appx. 353, 355
(5th Cir. 2005) (defendant failed to carry burden of demonstrating
that his sentence likely would have been different under advisory
guidelines where district court’s comments at sentencing hearing
suggested that district court was concerned about fairness of using
guideline to calculate offense level, but district court did not
indicate that using that guideline section would be unfair or that
it would have imposed a lower sentence under an advisory guideline
scheme); United States v. Rodriguez-Gutierrez, 428 F.3d at 204
6
(district court’s expression of disagreement with immigration law
insufficient to establish that Booker error affected defendant’s
substantial rights).
Even assuming that the district court’s remarks at sentencing
would satisfy the third prong of the plain error test, they are not
sufficient to satisfy “the even more exacting test required to show
the presence of extraordinary circumstances, which requires
appellant to show a ‘possibility of injustice so grave as to
warrant disregard of usual procedural rules.’” United States v.
Hickman, ___ Fed. Appx. ___, 2005 WL 3106379 (5th Cir. 2005)
(quoting McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir. 1984)).
Duarte-Juarez argues that, in the alternative, we should
pretermit the Booker issue and remand on the ground that the
Supreme Court’s decision in Shepard v. United States, 125 S.Ct.
1254 (2005), establishes that the district court misapplied the
Guidelines by applying a 16-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(vii) for a prior conviction for harboring an
illegal alien, because the Government presented no evidence to
support the district court’s finding that the alien-harboring
conviction met the definition of alien-smuggling for profit.
However, the Supreme Court remanded this case specifically for
further consideration in the light of Booker. When a case is
remanded from the Supreme Court with specific instructions, this
court must confine its review to the limitations established by the
Supreme Court’s remand order. See Gradsky v. United States, 376
7
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.”); United States v. Lee II, 358 F.3d 315,
321 (5th Cir. 2004) (“Absent exceptional circumstances, the mandate
rule compels compliance on remand with the dictates of a superior
court and forecloses relitigation of issues expressly or impliedly
decided by the appellate court.”). Duarte-Juarez’s arguments
regarding the misapplication of the guidelines are beyond the scope
of the Supreme Court’s remand and we will not consider them.
For the foregoing reasons, we conclude that nothing in the
Supreme Court’s Booker decision requires us to change our prior
affirmance in this case. We therefore reinstate our judgment
affirming Duarte-Juarez’s conviction and sentence.
JUDGMENT REINSTATED.
8