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. 04-50449
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL CASTOR-LOZANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas, El Paso
(No. 3:03-CR-2153-ALL-DB)
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Before JONES, Chief Judge, and JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
This matter is before us on remand from the Supreme Court for
reconsideration in light of its recent opinion in United States v.
Booker.1 At our request, the parties have commented on the impact
of Booker. For the following reasons, we conclude that Booker does
not affect Defendant-Appellant Juan Manuel Castor-Lozano’s
sentence.
I. BACKGROUND
Castor-Lozano pleaded guilty to reentering the United States
illegally following removal, in violation of 8 U.S.C. § 1326, an
*
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this opinion should not be published and is not precedent except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.
1
543 U.S. ——, 125 S. Ct. 738 (2005).
offense that is punishable by up to two years imprisonment. At his
sentencing —— which occurred prior to Booker —— the district court
increased Castor-Lozano’s offense level under the then-mandatory
Sentencing Guidelines by 16 levels, because he had a prior
aggravated felony conviction. Following the Guidelines, the court
sentenced Castor-Lozano to 46 months imprisonment. Castor-Lozano
then appealed his sentence, arguing that it violated the Fifth
Amendment’s Due Process Clause. After we affirmed in an
unpublished opinion,2 Castor-Lozano petitioned the Supreme Court
for a writ of certiorari, asserting his Booker claim for the first
time. The Supreme Court vacated our judgment and remanded to us
for reconsideration in light of Booker.3 We again affirm Castor-
Lozano’s sentence.
II. DISCUSSION
A. Standard of Review
Castor-Lozano raised his Booker claim for the first time in
his petition for a writ of certiorari. We will therefore review
his Booker claim only in the presence of “extraordinary
circumstances.”4 Although we have yet to flesh out the contours of
precisely what constitutes “extraordinary circumstances,” we know
that the extraordinary circumstances standard is more onerous than
2
United States v. Castor-Lozano, No. 04-50449, 111 Fed. Appx.
317 (5th Cir. 2004).
3
Alfaro v. United States, —— U.S. ——, 125 S. Ct. 1422 (2005).
4
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
2
the plain error standard.5 If, therefore, Castor-Lozano cannot
meet the requirements of plain error review, he certainly cannot
satisfy the requirements of extraordinary circumstances review.
So, despite the fact that Castor-Lozano argues that the
extraordinary circumstances standard is inapplicable in this case
for a variety of reasons, because —— as Castor-Lozano concedes ——
he cannot meet even the lower plain error standard, we need not
address his arguments.
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.”6 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.”7 Under Booker, a district
court’s sentencing of a defendant under mandatory Sentencing
Guidelines (1) constitutes error that (2) is plain.8 Whether the
error affects substantial rights is a more complex inquiry for
which the defendant bears the burden of proof. He will carry this
burden only if he can “show[] that the error ‘must have affected
the outcome of the district court proceedings.’”9 That may be
5
Id.
6
United States v. Cotton, 535 U.S. 625, 631 (2002).
7
Id.
8
United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
9
Id. (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).
3
shown, in turn, by the defendant’s “demonstrat[ing] a probability
‘sufficient to undermine confidence in the outcome.’”10 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.”11
B. Merits
In his supplemental letter brief, Castor-Lozano concedes that
“Mares appears to foreclose [his] plain-error claim in this
circuit.” Specifically, Castor-Lozano is unable to point to any
indication in the record that there is a probability that the
sentencing judge would have sentenced him differently under an
advisory Guidelines scheme. Instead, he preserves a challenge to
the standard of review we adopted in Mares, arguing that in
Mares we got it wrong and the plain error standard employed by
other courts (the Sixth Circuit, for example12) 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. Accordingly, we affirm the
sentence imposed by the district court below.
10
Id. (quoting United States v. Dominguez Benitez, 542 U.S.
74 (2004)).
11
Id.
12
See, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir.
2005).
4
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Castor-Lozano’s sentence is affirmed. We therefore
need not address the government’s pending Motion to Reinstate Prior
Affirmance of Appellant’s Conviction and Sentence in Lieu of Filing
Supplemental Booker Brief.
AFFIRMED; motion DENIED as unnecessary.
5