United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 21, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50385
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE AVILES-JAIMES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(No. 1:04-CR-12-ALL-SS)
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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 for reconsideration in light of its recent opinion in
United States v. Booker.1 At our request, Defendant-Appellant Jose
Aviles-Jaimes has submitted a supplemental letter brief addressing
the impact of Booker, to which the Government has responded with a
motion to reinstate our prior affirmance of his conviction and
sentence. For the following reasons, we find that Booker does not
affect Aviles-Jaimes’s sentence.
*
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this opinion should not be published and is not precedent except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).
I. BACKGROUND
In February 2004, Aviles-Jaimes pleaded guilty to being in the
United States unlawfully following deportation, in violation of 8
U.S.C. § 1326. This offense carries a maximum penalty of two
years’ imprisonment under § 1326(a) and one year of supervised
release. Pursuant to § 1326(b), however, the district court
increased Aviles-Jaimes’s offense level under the Guidelines based
on its findings that he committed his reentry offense while on
parole and less than two years after being released from custody
for a prior offense. The district court sentenced Aviles-Jaimes to
41 months’ imprisonment and three years of supervised release.
Aviles-Jaimes appealed his conviction, arguing that his
indictment did not state a § 1326(b) offense because it did not
allege a prior conviction, and that his sentence therefore exceeded
the statutory maximum in violation of the Constitution. We
affirmed his conviction and sentence in an unpublished opinion.2
Aviles-Jaimes then applied to the United States Supreme Court for
relief, challenging for the first time in his petition for
certiorari the constitutionality of the Sentencing Guidelines as
applied to him. As noted above, the Supreme Court remanded to us
for reconsideration in light of Booker.
2
United States v. Aviles-Jaimes, No. 04-50385, 112 Fed. Appx.
341 (5th Cir. Oct. 21, 2004).
2
II. DISCUSSION
A. Standard of Review
Aviles-Jaimes 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 The
extraordinary circumstances standard is more demanding than the
plain error standard 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 As Aviles-Jaimes’s
claim does not survive plain error review, we need not address the
question of extraordinary circumstances.
Under plain error review, we will not remand for resentencing
unless (1) there is error, (2) 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 (1) constitutes error, and (2) that
error is plain.8 Whether the error affects substantial rights is
3
United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
4
Id.
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).
3
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
In his supplemental letter brief, Aviles-Jaimes concedes that
he cannot carry his burden under the third prong of the plain error
test. Specifically, Aviles-Jaimes 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 urges us to abandon the
standard of review we adopted in Mares and instead apply the plain
error standard employed by, inter alia, the Fourth Circuit.11
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. Accordingly, we affirm the sentence
imposed below.
III. CONCLUSION
9
Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74
(2004)).
10
Id. at 522.
11
See, e.g., United States v. Hughes, 401 F.3d 540 (4th Cir.
2005).
4
As there exist no extraordinary circumstances or other grounds
for relief, Aviles-Jaimes’s sentence is AFFIRMED. The Government’s
motion to reinstate our prior affirmance is DENIED as moot.
5