United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41106
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(No. 2:03-CR-58)
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Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
This matter is before us on remand from the United States
Supreme Court in light of its recent opinion in United States v.
Booker.1 At our request, the parties have submitted supplemental
letter briefs addressing the impact of Booker. For the following
reasons, we find that Booker does not affect Defendant-Appellant
Ernesto Alvarado’s sentence.
I. BACKGROUND
In March 2003, a grand jury indicted Alvarado and his co-
defendant, Efrain Mendez, for knowingly possessing with the intent
*
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this opinion should not be published and is not precedent except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).
to distribute more than five kilograms of cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(A). In April 2003, Alvarado
agreed to plead guilty to the indictment and, in exchange, the
government agreed to (1) recommend that Alvarado receive a three-
level downward adjustment of his offense level for acceptance of
responsibility, and (2) recommend a sentence at the low end of the
applicable United States Sentencing Guidelines range.
At the re-arraignment hearing, the government submitted the
factual basis for the plea. Specifically, the government stated
that on February 11, 2003, Alvarado and Mendez drove a van into a
Border Patrol checkpoint at Falfurrias, Texas. When a drug dog
alerted to their van, the Border Patrol agent directed the vehicle
to a secondary inspection area. The agent found four cardboard
boxes containing 50 bundles of a material that the agent suspected
to be a controlled substance. The defendants confessed to the
agent that they knew they were transporting contraband, but stated
that they thought it was marijuana. The substance retrieved from
the van was subjected to laboratory analysis, which revealed that
it was cocaine. The analysis also confirmed that the defendants
possessed more than five kilograms of cocaine. The defendants
declared at the re-arraignment hearing that the government had
accurately summarized the facts underlying their pleas of guilty.
The district court found that there was a factual basis to support
a finding of guilt, and accepted the defendants’ guilty pleas.
At sentencing, the district court questioned whether Alvarado
qualified for the safety-valve provision of the Guidelines, which
2
would have entitled him to a two-level downward adjustment of his
offense level.2 The criteria for the safety-valve provision
include, inter alia, that “the defendant has truthfully provided to
the Government all information and evidence the defendant has
concerning the offense.”3 As the parties disputed the
applicability of the safety-valve provision, the court held a
hearing to determine whether it applied. The government’s case
agent testified that it was her opinion that the defendants knew
they were transporting cocaine, not marijuana, and that the
defendants were not forthcoming with the government regarding the
facts and evidence regarding their offense. The district court then
questioned the defendants. At the conclusion of the hearing, the
district court (1) credited the government case agent’s testimony,
(2) found the defendants not credible, and (3) determined that
Alvarado did not qualify for a sentence reduction under the safety-
valve provision. Accordingly, the district court imposed a 168-
month term of imprisonment and five years of supervised release.
Alvarado appealed his sentence, objecting on the ground that the
district court erred when it held that he failed to meet the
criteria of the safety-valve provision. We rejected Alvarado’s
argument and affirmed the sentence in an unpublished opinion.4
2
U.S.S.G. § 5C1.2
3
Id.
4
U.S. v. Alvarado, No. 03-41106, 2004 WL 2383335 (5th Cir.
Oct. 20, 2004).
3
II. DISCUSSION
A. Standard of Review
The parties dispute whether Alvarado raised his Booker claim
for the first time on appeal or in his petition for certiorari. If
Alvarado raised his Booker claim for the first time in his petition
for certiorari, we will not review it absent “extraordinary
circumstances.”5 The extraordinary circumstances standard is more
demanding than the plain error review that we employ when a
defendant has raised his Booker claim for the first time on
appeal.6 Therefore, if a defendant cannot satisfy plain error
review, he certainly cannot satisfy extraordinary circumstances
review.7
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.”8 If the circumstances meet all three
criteria, we may exercise our discretion to notice the error, but
only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”9 Since Booker, sentencing
under mandatory Guidelines constitutes error, and that error is
plain.10 Whether the error affects substantial rights is a more
5
U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
6
Id.
7
Id.
8
U.S. v. Cotton, 535 U.S. 625, 631 (2002).
9
Id.
10
U.S. v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
4
complex inquiry in which the defendant bears the burden of proof.
He carries his burden only if he can “demonstrate a probability
‘sufficient to undermine confidence in the outcome.’”11 The
defendant demonstrates such a probability when he identifies from
the record an indication that the sentencing judge would have
reached a significantly different result under an advisory
Guidelines scheme.12 We need not resolve the parties’ dispute as
to when Alvarado raised his Booker claim because his claim does not
pass the plain error standard.
B. Analysis
First, Alvarado contends that we should remand for
resentencing because he presents special circumstances.
Specifically, “he was sentenced for Possession with Intent to
Distribute cocaine although at both his plea and sentencing, he
specifically disputed any knowledge of cocaine and consistently
asserted that he believed that he was transporting marijuana.” At
the outset, we note that Alvarado pleaded guilty to knowingly
possessing cocaine with the intent to distribute it. In light of
Alvarado’s voluntary admission of guilt, it is unlikely that an
advisory Guidelines scheme would have affected the sentencing
judge. Furthermore, as noted supra, the district court did not
find Alvarado credible. Thus, Alvarado’s assertion that the court
would have sentenced him differently because he thought he was
transporting marijuana instead of cocaine is unpersuasive.
11
Id. (quoting U.S. v. Dominguez Benitez, 542 U.S. 74 (2004)).
12
Id. at 522.
5
Second, Alvarado insists that the district court
misapprehended its authority to depart below the Guidelines, and it
would have done so “on the grounds that [Alvarado] was not aware
that he was transporting cocaine and thought, instead, that he was
transporting marijuana.” In support of his argument, Alvarado
observes that the district court stated that no grounds for
departure existed except a downward departure for substantial
assistance. This, however, hardly serves as an indication that the
district court would have been inclined to depart downwardly but
for the then-mandatory nature of the Guidelines. Furthermore, it
is improbable that the sentencing judge would have acted
differently on the ground that Alvarado advances because, as we
have already observed, the record establishes that the sentencing
judge did not find Alvarado credible. Accordingly, Alvarado fails
to carry his burden.
III. CONCLUSION
As the district court did not commit plain error, Alvarado’s
sentence is
AFFIRMED.
6