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. 04-40218
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYES VILLASENOR-ARROYO,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
(No. L-03-CR-1560-1)
- - - - - - - - - -
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before JONES, Chief Judge, and 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 Reyes Villasenor-Arroyo’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this opinion should not be published and is not precedent except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 October 2003, Villasenor-Arroyo pleaded guilty to being in
the United States unlawfully following deportation, in violation of
8 U.S.C. § 1326. The district court increased Villasenor-Arroyo’s
offense level under the Guidelines because he had a prior felony
drug conviction. With a three-level reduction for acceptance of
responsibility, Villasenor-Arroyo’s Guidelines range ultimately
called for 46-57 months imprisonment.
The Presentence Investigation Report revealed that Villasenor-
Arroyo has lived most of his life in the United States, and that he
has six minor children who live in Texas and Wisconsin. At his
sentencing hearing, Villasenor-Arroyo apologized for his crime and
explained that the only reason he returned to the United States was
to see his children. The court was aware of Villasenor-Arroyo’s
family circumstances, and “appreciate[d] [that it is] a great
source of emotion and anguish.” At the conclusion of the
sentencing hearing, the district court sentenced Villasenor-Arroyo
to 46 months imprisonment, a term at the low end of the Guidelines.
In imposing the sentence, the court explained that Villasenor-
Arroyo’s “record is a serious one. I guess I think the low end,
sir, serves the necessary purpose. It’s an awful lot of time any
way you look at it. I really hope you will not come back, sir.
Your children will have to come to Mexico to visit you.”
Villasenor-Arroyo appealed his conviction, challenging the
constitutionality of the statute under which he was convicted. We
2
affirmed his conviction in an unpublished opinion.2 Villasenor-
Arroyo then appealed to the United States Supreme Court, arguing
not only that his conviction is unconstitutional, but also that his
sentence is unconstitutional under Booker. As noted above, the
Supreme Court remanded to us for reconsideration in light of
Booker.
II. DISCUSSION
A. Standard of Review
Villasenor-Arroyo raised his Booker claim for the first time
in his petition for certiorari. Therefore, we will not review his
Booker claim absent “extraordinary circumstances.”3 We have yet to
delineate specifically what constitutes extraordinary
circumstances. Instead, we have simply observed that 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.4 Therefore, if a
defendant cannot satisfy plain error review, he certainly cannot
satisfy extraordinary circumstances review.5
Under plain error review, we will not remand for resentencing
unless there is “(1) error, (2) that is plain, and (3) that affects
2
U.S. v. Villasenor-Arroyo, No. 04-40218, 110 Fed. Appx. 440
(5th Cir. Oct. 21, 2004).
3
U.S. v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
4
Id.
5
Id.
3
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 that error is
(2) plain.8 Whether the error affects substantial rights is a more
complex inquiry in which the defendant bears the burden of proof,
and 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
Villasenor-Arroyo contends that the district court would have
imposed a significantly different sentence on the basis of comments
that it made during his sentencing hearing. Specifically, he
points to the court’s empathy for his family situation.
Furthermore, he notes that the court recognized the harshness of
the sentence. The court, however, prefaced its recognition with
the observation that Villasenor-Arroyo’s “record is a serious
6
U.S. v. Cotton, 535 U.S. 625, 631 (2002).
7
Id.
8
U.S. v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
9
Id. (quoting U.S. v. Dominguez Benitez, 542 U.S. 74 (2004)).
10
Id. at 522.
4
one,” and concluded that the sentence imposed “serves the necessary
purpose.” Therefore, read in context, the court’s empathy and
other comments likely do not demonstrate a significant probability
that it would have sentenced Villasenor-Arroyo differently under an
advisory Guidelines scheme.11 Accordingly, Villasenor-Arroyo is not
entitled to relief under plain error review, much less
extraordinary circumstances review.
In the alternative, Villasenor-Arroyo argues that Booker error
is structural, and that we should therefore remand for resentencing
on that ground. This circuit, however, has determined that Booker
error is not structural.12 Villasenor-Arroyo also insists that
Booker error should be presumed prejudicial. Again, this circuit
has determined that Booker error should not be presumed
prejudicial.13 Villasenor-Arroyo presents no viable ground for
remand. Accordingly, we affirm his original sentence.
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds
for relief, Villasenor-Arroyo’s sentence is
AFFIRMED.
11
Cf. U.S. v.Higginbotham, No. 04-50018, 137 Fed. Appx. 665
(5th Cir. June 20, 2005) (denying relief even though the sentencing
court observed the harshness of the sentence imposed because the
court’s comments did not necessarily reflect a view that the
sentence was itself unfair).
12
U.S. v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005);
U.S. v. Arnold, 416 F.3d 349 (5th Cir. 2005).
13
Arnold, 419 F.3d 349.
5
6