United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50585
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS ROBLES-VERTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas, San Antonio
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ON REMAND FROM THE UNITED STATES SUPREME COURT
Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.
WIENER, Circuit Judge:
This matter is before us on remand from the Supreme Court for
reconsideration in light of United States v. Booker.1 At our
request, the parties have commented on the impact of Booker. We
conclude that Booker does not affect the sentence received by
Defendant-Appellant Jose Luis Robles-Vertiz.
I. FACTS AND PROCEEDINGS
Robles-Vertiz pleaded guilty to and was convicted of being in
the United States illegally after removal, in violation of 8 U.S.C.
§ 1326(a). Standing alone, a § 1326(a) offense carries a maximum
penalty of two years’ imprisonment and one year of supervised
release. Robles-Vertiz’s § 1326(a) offense, however, did not stand
1
543 U.S. 220, 125 S. Ct. 738 (2005).
alone: Prior to his removal from the United States, Robles-Vertiz
had been convicted of an aggravated felony which, under 8 U.S.C.
§ 1326(b)(2), increased the maximum penalty for his § 1326(a)
offense to 20 years’ imprisonment and three years’ supervised
release. Robles-Vertiz’s prior conviction also produced a 16-level
increase in his offense level under the United States Sentencing
Guidelines (“the Guidelines”), as a result of which his sentencing
range was 46-57 months. The district court departed downward,
lowering Robles-Vertiz’s Criminal History Category from III to II,
which resulted in a new sentencing range of 41-51 months. The
court then sentenced Robles-Vertiz at the bottom of this new range,
imposing a sentence of 41 months’ imprisonment and three years’
supervised release. Robles-Vertiz objected to the sentence on the
ground that it exceeded the maximum authorized by § 1326(a), but
the district court overruled his objection.
Robles-Vertiz then appealed his sentence to us, contending
that his sentence exceeded the statutory maximum in violation of
his rights under the Fifth Amendment’s Due Process Clause, because
the indictment charging him with a § 1326(a) violation did not
separately state a § 1326(b) offense. In his brief on appeal,
Robles-Vertiz acknowledged that precedent foreclosed that argument,
but that he raised it to preserve possible Supreme Court review.
We affirmed the district court’s judgment in an unpublished
opinion.2
2
United States v. Robles-Vertiz, No. 04-50585, 110 Fed. Appx.
428 (5th Cir. October 21, 2004) (unpublished opinion).
2
Robles-Vertiz then petitioned the Supreme Court for a writ of
certiorari. After the Court handed down Booker, Robles-Vertiz
filed a supplemental petition for certiorari in which, for the
first time, he raised a Booker challenge to his mandatory
Guidelines sentence. The Supreme Court granted Robles-Vertiz’s
petition, vacated our judgment affirming his sentence, and remanded
for our reconsideration in light of Booker.3 We again affirm
Robles-Vertiz’s sentence.
II. ANALYSIS
A. Standard of Review
As Robles-Vertiz raised his Booker claim for the first time in
his supplemental petition for certiorari, we review it only in the
presence of “extraordinary circumstances.”4 Although we have yet
to define the precise contours of “extraordinary circumstances,” we
3
Alfaro v. United States, 543 U.S. 1183 (2005).
4
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
More precisely, Robles-Vertiz’s claim should be characterized
as an assertion of “Fanfan” —— not “Booker” —— error. It is clear
that there was no “Booker” error or Sixth Amendment violation in
this case because the only enhancement to Robles-Vertiz’s sentence
was for his prior conviction. See Booker, 125 S. Ct. at 756
(reaffirming that “[a]ny fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a
reasonable doubt”) (emphasis added). This case presents what we
have termed Fanfan error because the district court sentenced
Robles-Vertiz pursuant to a mandatory guidelines system. See
United States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).
These semantics do not affect our analysis, however, because “a
district court’s Fanfan error will be treated the same as Booker
error in cases where the sentencing predated those decisions.”
United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert.
denied sub nom, Martinez-Lugo v. United States, 126 S. Ct. 464
(2005).
3
know that this standard is more onerous than the plain error
standard.5 It follows, then, that if Robles-Vertiz cannot meet the
requirements of plain error review, he certainly cannot satisfy the
requirements of extraordinary circumstances review.6 And, Robles-
Vertiz cannot meet the requisites of plain error review because he
has failed to show that the error in his case affected his
substantial rights. We therefore need not address whether
extraordinary circumstances exist.
Under plain error review, we will not remand for resentencing
unless there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.”7 If the circumstances in a case meet all
three criteria, we may exercise our discretion to notice the error
only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”8 Under Booker, a district
court’s sentencing of a defendant under the formerly-mandatory
Sentencing Guidelines (1) constitutes error (2) that is plain.9
Whether the error affects substantial rights is a more complex
inquiry in which the defendant bears the burden of proof. He will
carry this burden only if he can “show[] that the error ‘must have
5
Taylor, 409 F.3d at 676.
6
Id.
7
United States v. Cotton, 535 U.S. 625, 631 (2002).
8
Id.
9
United States v. Mares, 402 F.3d 511, 521 (5th Cir.), cert.
denied sub nom, Mares v. United States, 126 S. Ct. 43 (2005).
4
affected the outcome of the district court proceedings.’”10 That
may be shown, in turn, by the defendant’s “demonstrat[ion of] a
probability ‘sufficient to undermine confidence in the outcome.’”11
To demonstrate such a probability, the defendant must identify in
the record an indication that the “sentencing judge —— sentencing
under an advisory [Guidelines] scheme rather than a mandatory one
—— would have reached a significantly different result.”12 By all
accounts, this burden is “difficult”13 —— but not impossible14 —— to
meet.
B. Merits
In measuring a defendant’s attempt to show that a plain error
affected his substantial rights, our decisions have considered “two
issues: first, whether the judge made any statements during
sentencing indicating that he would have imposed a lesser sentence
had he not considered the Guidelines mandatory; [and] second, the
relationship between the actual sentence imposed and the range of
sentences provided by the Guidelines.”15 Robles-Vertiz does not
10
Id. (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).
11
Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74 (2004)).
12
Id.
13
United States v. Pennell, 409 F.3d 240, 254 (5th Cir. 2005);
see also United States v. Rodriguez-Gutierrez, 428 F.3d 201, 203
(5th Cir. 2005) (“[T]he Supreme Court mandates that establishing
[plain] error ‘should not be too easy.’”) (quoting United States v.
Dominguez Benitez, 542 U.S. 74 (2004)).
14
See Pennell, 409 F.3d at 245.
15
Rodriguez-Gutierrez, 428 F.3d at 203.
5
contend that the district court made any statements expressing a
preference for a lower sentence: He concedes that “the district
court made no particular remarks disagreeing with the requirements
of the mandatory guidelines,” or otherwise indicating that it would
have sentenced him differently under an advisory Guidelines scheme.
Instead, Robles-Vertiz calls to our attention (1) “sympathetic
circumstances surrounding [his] illegal reentry offense that
support a finding of a reasonable likelihood of a lower sentence”
—— namely, his five children, his disability, his steady work in
the United States, and the fact that he returned to the United
States to be with his family; and (2) the facts that the district
court (a) departed downward from the Guidelines’ sentencing range
before sentencing Robles-Vertiz, and (b) imposed the minimum
sentence permitted by this lower sentencing range. He argues that
“[t]hese circumstances” prove that the error in this case affected
his substantial rights because, “despite the court’s demonstrated
willingness to reduce Robles[-Vertiz’s] sentence, any . . .
reduction [beyond the downward departure] based on the sympathetic
circumstances . . . was virtually foreclosed.” After all, contends
Robles-Vertiz, “[u]nder the mandatory guideline scheme, departures
were severely limited.”
We hold that Robles-Vertiz has not carried his burden of
showing that Fanfan error “‘affected the outcome of [his] district
court proceedings.’”16 First, he concedes that he cannot identify
any statements in the record demonstrating that the “sentencing
16
Mares, 402 at 521 (quoting Olano, 507 U.S. at 734).
6
judge —— sentencing under an advisory [Guidelines] scheme rather
than a mandatory one —— would have reached a significantly
different result.”17 And, Robles-Vertiz’s other evidence fails to
make up the difference. True, his contention —— that the district
court granted him a downward departure because it viewed the pre-
departure Guidelines sentencing range as being too severe —— is
plausible. But it is beside the point as well. We are concerned
not with whether the district court thought that the pre-departure
Guidelines sentence was too severe; rather, our concern is whether,
under an advisory Guidelines system, the district court would have
imposed a sentence different from that which it actually imposed,
i.e., different from its post-departure sentence. Although the
district court’s downward departure may plausibly indicate that it
viewed the pre-departure sentence as too severe, it says nothing
about the post-departure sentence.
Robles-Vertiz disagrees. He contends that, had the then-
mandatory Guidelines permitted the district court to take into
account the “sympathetic circumstances” of his case, the court
would have departed further downward than it did. Again, though,
this argument is unavailing; Robles-Vertiz can point to nothing in
the record indicating that the district court would have relied on
his individual circumstances to impose an even lower sentence than
it did. Moreover, Robles-Vertiz’s contention that under the then-
mandatory Guidelines the district court could not have considered
his circumstances in ordering a less severe sentence is simply
17
Id.
7
incorrect. Although the Guidelines state that “[p]hysical
condition,” “[e]mployment record,” and “[f]amily ties and
responsibilities” are “not ordinarily relevant in determining
whether” to depart downward,18 the truth is in the details: As the
very terms of these Guidelines policy statements suggest, Robles-
Vertiz’s circumstances are not “ordinarily” relevant19; but they may
be relevant in certain circumstances.20 Had the district considered
Robles-Vertiz’s circumstances to be sufficiently compelling, then,
it could have considered them. And, finally, even though the
Guidelines are now advisory, sentencing courts still must consider
them.21 It is thus true that the district court could order a less
onerous sentence on remand, but it is at least equally possible
that the court could impose precisely the same one —— or even a
greater one.
Robles-Vertiz next attempts to meet his burden by emphasizing
the fact that the district court sentenced him at the bottom of the
post-departure Guidelines range. Under our decision in United
States v. Bringier, though, Robles-Vertiz’s invocation of this fact
18
See U.S.S.G. § 5H1.4, p.s. (2003) (physical condition); id.
§ 5H1.5, p.s. (employment record); id. § 5H1.6 (family ties and
responsibilities).
19
Emphasis added.
20
See, e.g., U.S.S.G. § 5H1.4, p.s. (stating that “an
extraordinary physical impairment may be a reason to depart
downward”); id. § 5H1.6, comment (n.1) (providing that the
sentencing court may take a family’s loss of financial support into
account in deciding to depart downward).
21
Mares, 402 F.3d at 518-19.
8
alone is not enough to carry his burden.22 And, contrary to Robles-
Vertiz’s argument, Bringier is not distinguishable from this case.
Robles-Vertiz argues that unlike the defendant in Bringier, he
presents sufficiently “sympathetic circumstances” to raise a
reasonable likelihood that the district court would have imposed a
lower sentence under an advisory Guidelines scheme. The
differences between this case and Bringier, however —— for example,
that Bringier was a “large-scale drug trafficker” while Robles-
Vertiz is “an illegal alien who merely crossed the border” —— have
no bearing on the question whether we may infer from a Guideline-
minimum sentence that Robles-Vertiz would have been sentenced
differently under an advisory scheme. The significance of any
factual differences is, of course, borne out in the sentences
imposed: Bringier was sentenced to a Guideline-minimum 30 years’
imprisonment, compared to Robles-Vertiz’s 41 months. Yet, in
neither case may we conclude that the district court would have
imposed a lesser sentence under an advisory scheme. Robles-
Vertiz’s attempt to distinguish Bringier is simply unconvincing.
He has not carried his burden under the third prong of the plain
error test. As Robles-Vertiz has failed to satisfy plain error
22
See 405 F.3d 310, 318 n.4 (5th Cir. 2005) (reasoning that
“[t]he fact that the sentencing judge imposed the minimum sentence
under the Guideline range . . . alone is no indication that the
judge would have reached a different conclusion under an advisory
scheme.”). Here, like in Bringier, “[t]he fact that the sentencing
judge imposed the minimum sentence under the Guideline range” is,
for all practical purposes, standing alone: Although Robles-Vertiz
attempts to pair that fact with the district court’s downward
departure, as we have explained, the downward departure does not
indicate what Robles-Vertiz claims it to, which leaves the district
court’s minimum sentence standing alone.
9
review, we do not reach his argument that the error in his
sentencing seriously affected the fairness, integrity and public
reputation of the proceedings.
Finally, in a last-ditch effort, Robles-Vertiz expresses
disagreement with the mechanics of Mares’s plain error standard.
He recognizes that Mares forecloses this argument, but nonetheless
raises the point to preserve a challenge to Mares’s articulation of
the plain error standard of review. He insists that we got it
wrong in Mares, and that the plain error standard employed by other
courts (the Sixth Circuit, for example23) gets it right. Mares is
the settled law of this circuit, however, and we may revisit it
only en banc or following a Supreme Court decision that actually or
effectively overturns it.24
As Robles-Vertiz cannot satisfy plain error review, he
certainly cannot demonstrate the presence of extraordinary
circumstances that would entitle him to resentencing. We affirm
his sentence.
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Robles-Vertiz’s sentence is AFFIRMED. The Government’s
pending motion to reinstate our prior affirmance is DENIED as moot.
23
See, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir.
2005).
24
See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997).
10