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. 03-41569
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL VILLANUEVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(No. 5:03-CR-914-01)
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
This matter is before us on remand from the United States
Supreme Court for reconsideration 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 Manuel Villanueva’s sentence.
I. BACKGROUND
*
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this opinion should not be published and is not precedent except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).
In July 2003, Villanueva pleaded guilty, pursuant to a plea
agreement, to one count of transporting undocumented aliens for
financial gain in violation of 8 U.S.C. § 1324. His base offense
level under USSG § 2L1.2(a) was twelve, and the presentence report
recommended, pursuant to § 2L1.1(b)(2)(A), a three-level
enhancement based on the number of aliens he smuggled. The
district court additionally increased the base offense level to
eighteen under § 2L1.1(b)(5), based on its finding that Villanueva
was high on heroin at the time of his offense and thereby created
a substantial risk of death or serious bodily injury to the aliens
he was transporting (“reckless endangerment enhancement”).
Finally, Villanueva received a three-level reduction for acceptance
of responsibility under §§ 3E1.1(a) & (b). The resulting
imprisonment range under the sentencing guidelines was 41 to 51
months. The district court sentenced Villanueva to 51 months’
imprisonment to be followed by three years of supervised release.
At his sentencing Villanueva denied having used heroin on the
day of the offense and objected to the three-level reckless
endangerment enhancement, contending that there was insufficient
evidence to support the enhancement. Villanueva did not make any
Blakely-2 or Booker-type objections in the district court, however,
as his sentencing occurred several months before either of these
decisions issued.
On appeal, Villanueva again challenged the sufficiency of the
evidence supporting the reckless endangerment enhancement.
2
Blakely v. Washington, 542 U.S. 296 (2004).
2
Additionally, during the pendency of the appeal Blakely was
decided, and we granted Villanueva’s request for leave to file a
supplemental brief asserting “that the [enhancement] violated
Blakely ... because it was based on facts that were not charged in
his indictment, were not found by a jury beyond a reasonable doubt,
and were not admitted by him at his plea hearing.”3 We affirmed
the sentence in an unpublished opinion, noting that the Blakely
argument was foreclosed by our decision in United States v.
Pineiro, which held Blakely inapplicable to the federal sentencing
guidelines.4
In his petition to the United States Supreme Court for a writ
of certiorari, Villanueva again asserted Blakely-type error and
requested that the Supreme Court remand his case for further
consideration under its then-pending decision in Booker. By a
memorandum of the acting Solicitor General, the Government also
recommended a remand for further consideration in light of Booker,
which the Supreme Court granted.
II. DISCUSSION
A. Standard of Review
Villanueva raised his Booker claims for the first time on
appeal. Therefore, we review for plain error.5 This means that we
will not remand for resentencing unless there is (1) error, (2)
3
United States v. Villanueva, No. 03-41569, 111 Fed. Appx.
312 (5th Cir. Oct. 20, 2004) (unpublished opinion).
4
Id. (citing United States v. Pineiro, 377 F.3d 464 (5th Cir.
2004)).
5
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
3
that error is plain, and (3) it affects substantial rights.6 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.”7
Since Booker, sentencing under mandatory Guidelines
constitutes (1) error, and (2) that error is plain.8 Whether the
error affects substantial rights is a more complex inquiry in which
the defendant bears the burden of proof. He carries his burden if
he can “demonstrate a probability ‘sufficient to undermine
confidence in the outcome.’”9 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.10
B. Merits
Villanueva satisfies the first two prongs of our plain error
review because his sentence resulted from application of the
Guidelines in their mandatory form. He has not, however, met his
burden of showing that this error affected his substantial rights,
as required under Mares. Villanueva acknowledges that this circuit
6
United States v. Cotton, 535 U.S. 625, 631 (2002).
7
Id.
8
Mares, 402 F.3d at 521.
9
Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74
(2004)).
10
Id. at 522.
4
has rejected the arguments that Booker error is structural or
otherwise reversible per se,11 or presumptively prejudicial,12 but
mentions those arguments only to preserve them for further review.
Next, Villanueva urges us to follow the approach taken by the Tenth
Circuit in United States v. Dazey,13 rather than our own. Mares,
however, is the settled law of this circuit, and we may revisit it
only en banc or following a Supreme Court decision that effectively
overturns it. As Villanueva presents no viable ground for remand
under Mares, we affirm his sentence.
III. CONCLUSION
Villanueva has failed to satisfy his burden of demonstrating
that the plain error at his sentencing affected his substantial
rights. His sentence is AFFIRMED.
11
See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005); United States v. Arnold, 416 F.3d 349, 2005 WL 1546254
at *9 n.23 (5th Cir. 2005).
12
Arnold, 419 F.3d 349, 2005 WL at *9 n.23.
13
403 F.3d 1147 (10th Cir. 2005).
5