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. 04-50615
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR AVILA-FERNANDEZ, also known as Juan Antonio Mata,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas, El Paso
(No. 3:04-CR-324-ALL-KC)
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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 Hector Avila-Fernandez’s sentence.
I. BACKGROUND
Avila-Fernandez pleaded guilty to reentering the United States
illegally following removal, in violation of 8 U.S.C. § 1326, an
offense that is punishable by up to two years imprisonment. At his
*
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this opinion should not be published and is not precedent except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).
sentencing —— which occurred prior to Booker —— the district court
increased Avila-Fernandez’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 Avila-Fernandez to 46 months imprisonment. Avila-
Fernandez then appealed his sentence, arguing that it violated the
Fifth Amendment’s Due Process Clause. After we affirmed in an
unpublished opinion,2 Avila-Fernandez petitioned the Supreme Court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 Avila-
Fernandez’s sentence.
II. DISCUSSION
A. Standard of Review
Avila-Fernandez 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
the plain error standard.5 If, therefore, Avila-Fernandez cannot
2
United States v. Avila-Fernandez, No. 04-50615, 111 Fed.
Appx. 328 (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).
5
Id.
2
meet the requirements of plain error review, he certainly cannot
satisfy the requirements of extraordinary circumstances review.
So, despite the fact that Avila-Fernandez argues that the
extraordinary circumstances standard is inapplicable in this case
for a variety of reasons, because —— as Avila-Fernandez 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
shown, in turn, by the defendant’s “demonstrat[ing] a probability
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
‘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, Avila-Fernandez concedes
that “Mares appears to foreclose [his] plain-error claim in this
circuit.” Specifically, Avila-Fernandez 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, Avila-Fernandez’s sentence is AFFIRMED. The
Government’s motion to reinstate our prior affirmance is DENIED as
moot.
5